iljijlii||il!illjl||l!li|i!l|!liil^ 


U-- 


THE   TRIAL 


THEODOIIE   PAllKER, 


"MISDEMEANOR" 


OF 


%  ^]fjtt\}  u\  litnniil  gall  against  Jiiiiiiapping, 


BEFORE   THE   CIRCUIT   COURT   OF  THE  UNITED   STATES, 


AT     BOSTON,     APRIL     3,     1855 


THE    DEFENCE, 


THEODORE     PARKER, 

// 

MINISTER   OF  THE  TWENTY-EIGHTH   COKGEEGATIOXAL  SOCIETY   IN   BOSTON. 


BOSTON : 
rUBLISIIED     FOR    THE    AUTHOR 

1855. 


Entered  according  to  Act  of  Congress,  in  the  year  1855,  by 

THEODORE    PARKER, 

la  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CAMBRIDGE: 
AIJ.KS    AND    FAKNIIAM,    miNTERS. 


TO 

JOHN    PARKER    HALE     • 

AND 

CHARLES    MAYO    ELLIS, 

MAGNANIMOUS     LAWYERS, 

FOR     THEIR      LABORS      IN      A      KOBLE      PROFESSION, 

WHICH   HAVING    ONCE   IN   ENGLAND  ITS   KELTNG,  ITS   SAUNDERS,  ITS  JEFFREYS,  AND    ITS 

SCROGGS,  AS  NOW   IN  AMERICA   ITS  SIIARKET,  ITS  GRIER,  ITS  CURTIS,  AND   ITS 

KANE,   HAS   TEl*  ALSO   SUCH   GENEROUS   ADVOCATES    OF   HUMANITY 

AS    EQUAL    THE    GLORIES    OF    HOLT    AND    ERSKINE,    OF 

MACKINTOSH    AND     ROMILLY, 

FOR   THEIR    ELOQUENT   AND    FEARLESS   DEFENCE    OF   TRUTH,    RIGHT,  AND    LOVE, 

THIS    VOLUJIE    IS    DEDICATED, 

BY  THEIR  CLIENT  AND  FRIEND, 

THEODORE  PARKER. 


PREFACE. 


TO  THE  PEOPLE  OF  THE  FEEE  STATES  OF  AMERICA. 

Fellow- Citizens  and  Friends, — 

If  it  were  a  merely  personal  matter  for  which  I  was  arraigned 
before  the  United  States  Court,  after  the  trial  was  over  I  should 
trouble  the  public  no  further  with  that  matter ;  and  hitherto  indeed, 
though  often  attacked,  nay,  almost  continually  for  the  last  fourteen 
years,  I  have  never  returned  a  word  in  defence.  But  now,  as  this 
case  is  one  of  such  vast  and  far-reaching  importance,  involving  the 
great  Human  Right  to  Freedom  of  Speech,  and  as  the  actual  ques- 
tion before  the  court  was  never  brought  to  trial,  I  cannot  let  the 
occasion  pass  by  without  making  further  use  of  it. 

When  Judge  Curtis  delivered  his  charge  to  the  Grand-Jury,  June 
7th,  1854,  I  made  ready  for  trial,  and  in  three  or  four  days  my  line 
of  defence  was  marked  out  —  the  fortifications  sketched,  the  place 
of  the  batteries  determined ;  I  began  to  collect  arms,  and  was  soon 
ready  for  his  attack.  When  that  Grand-Jury,  summoned  with  no 
special  reference  to  me,  refused  to  find  a  bill  and  were  discharged,  I 
took  public  notice  of  the  conduct  of  Judge  Curtis,  in  a  Sermon  for 
the  Fourth  of  JuJy.^  But  I  knew  the  friends  of  the  fugitive  slave 
bill  at  Boston  and  Washington  too  well  to  think  they  would  let  the 
matter  sleep ;    I  knew  what  arts  could  be  used  to  pack  a  jury  and 

^  2  Parker's  Additional  Speeches,  178-283. 

a* 


vi  PREFACE. 

procure  a  bill.  So  I  was  not  at  all  surprised  when  I  heard  of  the 
efforts  making  by  the  Slave  Power  in  Boston  to  obtain  an  indict- 
ment by  another  grand-jury  summoned  for  that  purpose.  It  need 
not  be  supposed  that  I  was  wholly  ignorant  of  their  doings  from  day 
to  dav.  The  arrest  was  no  astonishment  to  me.  I  knew  how 
much  the  reputation  of  this  Court  and  of  its  Attorney  depended  on 
the  success  of  this  prosecution.  I  knew  what  private  malignity 
was  at  work. 

After  my  arraignment  I  made  elaborate  preparation  for  my  de- 
fence. I  procured  able  counsel,  men  needing  no  commendation,  to 
manage  the  technical  details  which  I  knew  nothing  about  and  so 
could  not  meddle  with,  while  I  took  charge  of  other  matters  lying 
more  level  to  my  own  capacity.  I  thought  it  best  to  take  an  active 
part  in  my  own  defence, —  for  the  matter  at  issue  belonged  to  my 
previous  studies  and  general  business ;  my  personal  friends  and  the 
People  in  general,  seemed  to  expect  me  to  defend  myself  as  v/ell  as 
I  could. 

A  great  political  revolution  took  place  between  the  Judge's  charge 
and  my  arraignment,  June  7th,  and  November  29th,  1854,  and  I 
thought  the  Court  would  not  allow  the  case  to  come  to  open  argu- 
ment. For  certainly,  it  would  not  be  a  very  pleasant  thing  for  Judge 
Sprague  and  Judge  Curtis,  who  have  taken  such  pains  to  establish 
slavery  in  Massachusetts,  to  sit  there  —  each  like  a  travestied  Pro- 
metJH'U?,  chained  up  in  a  silk  gown  because  they  had  brought  to 
earth  fin;  from  Ihi-  (piarter  opposite  to  Heaven  —  and  listen  to  Mr. 
Hale,  and  Mr.  Phillips  aild  other  anti-slavery  lawyers,  day  after  day: 
there  were  facts,  sure  to  come  to  light,  not  honorable  to  the  Court 
and  not  pleasant  to  look  at  in  the  presence  of  a  New  England  com- 
munity then  getting  indignant  at  the  outrages  of  the  Slave  Power. 
I  rj«-v»T  thought  the  case  wonld  come  to  tli(;  jury.  I  looked  over  the 
indU'tmrrit,  and  !<»  my  unlearned  vyv.  it  s(>emed  so  looped  and  win- 
dowed with  hrrachcs  that,  a  skilfid  lawyer  might  drive  a  cart  and 
■ix  oxen  through  it  in  various  direclioni*;  and  so  the  Court  might 
ea»«ily  quaHh  the  indictment  and  leave  all  tlu-  blame  of  the  failure  on 


PREFACE.  Vll 

the  poor  Attorney  —  whom  they  seemed  to  despise,  though  using  him 
for  their  purposes  —  while  they  themselves  should  escape  with  a 
whole  reputation,  and  ears  which  had  not  tingled  under  manly 
speech. 

Still,  it  was  possible  that  the  trial  would  come  on.  Of  course, 
I  knew  the  trial  would  not  proceed  on  the  day  I  was  ordered 
to  appear  —  the  eighty-fifth  anniversary  of  the  Boston  Massacre. 
It  would  be  "  unavoidably  postponed,"  which  came  to  pass  accord- 
ingly. The  Attorney,  very  politely,  gave  me  all  needed  information 
from  time  to  time. 

At  the  "  trial,"  April  3d,  it  was  optional  with  the  defendant's 
counsel  to  beat  the  Government  on  the  indictment  before  the  Court ; 
or  on  the  merits  of  the  case  before  the  Jury.  The  latter  would  fur- 
nish the  most  piquant  events,  for  some  curious  scenes  were  likely 
to  take  place  in  the  examination  of  witnesses,  as  well  as  instruction 
to  be  offered  in  the  Speeches  delivered.  But  on  the  whole,  it  was 
thought  best  to  blow  up  the  enemy  in  his  own  fortress  and  with  his 
own  magazine,  rather  than  to  cut  him  to  pieces  with  our  shot  in  the 
open  field.*  So  the  counsel  rent  the  indictment  into  many  pieces  — 
apparently  to  the  great  comfort  of  the  Judges,  who  thus  escaped  the 
battle,  which  then  fell  only  on  the  head  of  the  Attorney. 

At  the  time  appointed  I  was  ready  with  my  defence  —  which  I 
now  print  for  the  Country.  It  is  a  Minister's  performance,  not  a 
lawyer's.  Of  course,  I  knew  that  the  Court  would  not  have  allowed 
me  to  proceed  with  such  a  defence  —  and  that  I  should  be  obliged 
to  deliver  it  through  the  press.  Had  there  been  an  actual  jury  trial, 
I  should  have  had  many  other  things  to  offer  in  reference  to  the 
Government's  evidence,  to  the  testimony  given  before  the  grand-jury, 
and  to  the  conduct  of  some  of  the  grand-jurors  themselves.  So  the 
latter  part  of  the  defence  is  only  the  skeleton  of  what  it  otherwise 
might  have  been,  —  the  geological  material  of  the  country,  the  Flora 
and  Fauna  left  out. 

It  would  have  been  better  to  publish  it  immediately  after  the  de- 
cision of  the  case:  but  my  brief  was  not  for  the  printer,  and  as  many 


viii  PREFACE. 

duties  occurred  at  that  time,  it  was  not  till  now,  in  a  little  vacation 
from  severer  toils,  that  I  have  found  leisure  to  w^rite  out  my  defence 
in  full.  Fellow- Citizens  and  Friends,  I  present  it  to  you  in  hopes 
that  it  may  serve  the  great  cause  of  Human  Freedom  in  America 
and  the  world  ;  surely,  it  has  seldom  been  in  more  danger. 

THEODORE   PARKER. 
Boston-,   24^A   Auc/iu^t,   1855. 


INTRODUCTION. 


On  Tuesday,  the  23d  of  May,  1854,  Charles  F.  Suttle  of  Virginia, 
presented  to  Edward  Greeley  Loring,  Esquire,  of  Boston,  Commis- 
sioner, a  complaint  under  the  fugitive  slave  bill  —  Act  of  Septem- 
ber ISth,  1850  —  praying  for  the  seizure  and  enslavement  of  Anthony 
Burns. 

The  next  day,  Wednesday,  May  24th,  Commissioner  Loring  issued 
the  warrant :  Mr.  Burns  was  seized  in  the  course  of  the  evening  of 
that  day,  on  the  false  pretext  of  burglary,  and  carried  to  the  Suffolk 
County  Court  House  in  which  he  was  confined  by  the  Marshal, 
under  the  above-named  warrant,  and  there  kept  imprisoned  under  a 
strong  and  armed  guard. 

On  the  25th,  at  about  nine  o'clock  in  the  morning,  the  Commis- 
sioner proceeded  to  hear  and  decide  the  case  in  the  Circuit  Court 
room,  in  which  were  stationed  about  sixty  men  serving  as  the  Mar- 
shal's guard.  Seth  J.  Thomas,  Esquire,  and  Edward  Griffin  Parker, 
Esquire,  members  of  the  Suffolk  Bar,  appeared  as  counsel  for  Mr. 
Suttle  to  help  him  and  Commissioner  Loring  make  a  man  a  Slave. 
Mr.  Burns  was  kept  in  irons  and  surrounded  by  "the  guard."  The 
Slave-hunter's  documents  were  immediately  presented,  and  his  wit- 
ness was  sworn  and  proceeded  to  testify. 

Wendell  Phillips,  Theodore  Parker,  Charles  M.  Ellis,  and  Richard 
H.  Dana,  with  a  few  others,  came  into  the  Court  room.  Mr.  Parker 
and  some  others,  spoke  with  Mr.  Burns,  who  sat  in  the  dock  ironed, 
between  two  of  the  Marshal's  guard.     After  a  little  delay  and  con- 


X  INTRODUCTION. 

ference  among  these  four  and  others,  Mr.  Dana  interrupted  the 
proceedings  and  asked  that  counsel  might  be  assigned  to  Mr.  Burns, 
and  so  a  defence  allowed.  To  this  Mr.  Thomas,  the  senior  counsel 
for  the  Slave-hunters,  objected.  But  after  repeated  protests  on  the 
part  of  Mr.  Dana  and  Mr.  Ellis,  the  Commirisioner  adjourned  the 
hearing  until  ten  o'clock,  Saturday,  May  27th. 

On  the  evening  of  Friday,  May  26th,  there  was  a  large  and  earnest 
meeting  of  men  and  women  at  Faneuil  Hall.  Mr.  George  R.  Russell, 
of  West  Roxbury,  presided ;  his  name  is  a  fair  exponent  of  the  char- 
acter and  purposes  of  the  meeting,  which  Dr.  Samuel  G.  Howe  called 
to  order. 

Speeches  were  made  and  Resolutions  passed.  Mr.  Phillips  and 
Mr.  Parker,  amongst  others,  addressed  the  meeting;  Mr.  Parker's 
speech,  as  reported  and  published  in  the  newspapers,  is  reprinted  in 
this  volume,  page  199.  While  this  meeting  was  in  session  there 
was  a  gathering  of  a  few  persons  about  the  Court  House,  the  outer 
doors  of  which  had  been  unlawfully  closed  by  order  of  the  Marshal ; 
an  attempt  was  made  to  break  through  them  and  enter  the  building, 
where  the  Supreme  Court  of  Massachusetts  was  sitting  engaged  in 
a  capital  case ;  and  the  Courts  of  this  State  must  always  sit  with 
open  doors.  In  the  strife  one  of  the  Marshal's  guard,  a  man  hired 
to  aid  in  the  Slave-hunt,  was  killed  —  but  whether  by  one  of  the 
assailing  party,  or  by  the  Marshal's  guard,  it  is  not  yet  quite  clear. 
It  does  not  appear  from  the  evidence  laid  before  the  public  or  the 
three  Grand-Juries,  that  there  was  any  connection  between  the  meet- 
ing at  Faneuil  Hall  and  the  gathering  at  the  Court  House. 

Saturday,  27th,  at  ten  o'clock,  the  Commissioner  opened  his 
Court  again,  his  prisoner  in  irons  before  him.  The  other  events 
arc  well  known.  Mr.  Burns  was  taken  away  to  Slavery  on  Friday, 
June  2d,  by  an  armed  body  of  soldiers  with  a  cannon. 

Tli«-  May  'J'lTiii  of  tlie  (!irc.uit  Court  at  Boston  began  on  the 
l!)[\\  of  tliaf  month,  and  llic  (Jrand-Jury  for  that  term  had  already 
been  Kurninonrd.      Here  is  Ijic  list:  — 


INTRODUCTION. 


XI 


United  States  Cikcuit  Court, 
Massachusetts  District. 


May  Term,  1854.     ss.  May  15,  1854. 


GRAND-JURY. 

1  Sworn. 

Isaac  Tower, 

Randolph, 

Foreman. 

2 

Elbridge  G.  Manning, 

Andover. 

3 

Asa  Angicr, 

u 

4 

Ballard  Lovcjoy, 

(( 

5 

Levi  Eldridge, 

Chatham. 

6 

Isaac  B.  Young, 

(( 

7 

Josiah  Peterson, 

Duxbury. 

8 

James  Curtis, 

(( 

9  Not  Sworn 

.  William  Amory, 

Boston, 

Excused  first  day. 

ber  of  the  bar. 

10  f 

Sworn. 

James  P.  Bush, 

u 

Absent  June  28th. 

11 

<i 

John  Clark, 

(( 

12 

(( 

Charles  II.  Mills, 

(( 

13 

u 

William  N.  Tyler, 

(( 

14 

u 

Samuel  Welteh, 

(( 

15 

l( 

Reuben  Nichols, 

Reading. 

16 

ii. 

Benjamin  M.  Boyce, 

a 

17 

((    . 

Ephraim  F.  Belcher, 

Randolph. 

18 

(( 

Thomas  S.  Brimblecome, 

1  Fairhaven. 

19 

u 

Obed  F.  Hitch, 

(1 

20 

u 

Lowell  Claflin, 

Hopkinton. 

21 

(( 

William  Durant, 

Leominster. 

22 

(( 

Charles  Grant, 

(1 

23 

u 

Jeremiah  B.  Luther, 

Douglas. 

Mem- 


On  the  7th  of  June,  Judge  Curtis  gave  to  this  Grand-Jury  his 
charge.^  In  that  he  spoke  of  the  enforcement  of  the  fugitive  slave 
bill;  and  he  charged  the  Jury  especially  and  minutely  upon  the 
Statute  of  the  United  States  of  1790,  in  relation  to  resisting 
officers  in  service  of  process  as  follows, 

That  not  only  those  who  are  present  and  actually  obstruct,  resist, 
and  oppose,  and  all  who  are  present  leagued  in  the  common  design, 
and  so  situated  as  to  be  able  in  case  of  need,  to  afford  assistance  to 
those  actually  engaged ;   but  all  who,  though  absent,  did  procure, 


^  The  charge  is  printed  below,  at  page  1 70. 


xii  INTRODUCTION. 

counsel,  command,  or  abet  others  to  commit  the  offence;  and  all 
who,  by  indirect  means,  by  evincing-  an  express  liking;  approbation, 
or  assent  to  the  design,  ivere  liable  as  principals.  And  he  'added, 
"  My  instruction  to  you  is,  that  language  addressed  to  persons 
who  immediately  afterwards  commit  an  offence,  actually  intended 
by  the  speaker  to  incite  those  addressed  to  commit  it,  and  adapted 
thus  to  incite  them,  is  such  a  counselling,  or  advising  to  the 
crime  as  the  law  contemplates,  and  the  person  so  inciting  others 
is  liable  to  be  indicted  as  a  principal,"  and  it  is  of  no  importance 
that  his  advice  or  directions  ivere  departed  from  in  respect  to  the 
time,  or  place,  or  precise  mode,  or  means  of  committing  it. 

That  Jury  remained  in  session  a  few  weeks  :  pains  were  taken  to 
induce  them  to  find  bills  against  the  speakers  at  Faneuil  Hall ;  but 
they  found  no  indictment  under  the  law  of  1790,  or  that  of  1850 ; 
they  were  discharged. 

On  the  22d  of  September,  venires  were  issued  by  order  of  the 
Court  for  a  new  Grand-Jury ;  and,  on  the  16th  of  October,  twenty- 
three  were  returned  by  Marshal  Freeman,  and  impanelled.  Here  is 
the  list  of  new  Grand-Jurors  :  — 


United  States  Circuit  Coukt, 
Massachusetts  District 


;rt,  I 
October  Term,  1854.    ss.  October  16,  1854. 


GRAND-JURY. 

1   Sworn.    Enoch  Patterson,  Jr.,       Boston,         Foreman. 


2 

(( 

David  Aldcn, 

II 

3 

a 

Stephen  D.  Abbott, 

Andovcr. 

4 

(1 

Isaac  Bcal, 

Chatham. 

5 

11 

John  Burrill, 

Reading. 

C 

(( 

]\I;itlif'.w  Cox, 

Boston. 

7 

u 

Richard  15.  Cliandlitr, 

])uxbury. 

8 

<( 

Cliarh'S  L.  C^ununings, 

Douglas. 

9 

i( 

(^Iiarhrs  Cartcir, 

Lconiinster. 

10 

(1 

Warren  Davi^, 

Reading. 

11 

ti 

William  W.  (in'cnoiigh, 

Boston. 

12 

II 

(Icror^'i!  ().  Hovcy, 

<i 

13 

u 

Juliii  iM.  Ibjwl.'iiiil, 

Fairhaven. 

INTllODUCTION. 

14   Sworn. 

IManson  D.  Haws, 

Leominster. 

15       " 

John  Ilolbrook, 

Randolph. 

Excused. 

Nathaniel  Johnson, 

Ilopkinton, 

Excused  first  day,  Octo- 
ber IGth,  for  the  term. 

IG  Sworn. 

George  Londen, 

Duxbury. 

17       " 

Nathan  Moore, 

Andover. 

18       " 

Samuel  P.  Ridler, 

Boston. 

19       " 

Christopher  Ryder, 

Chatham. 

20       " 

John  Smith, 

Andover. 

21       " 

Appollos  Wales, 

Randolph. 

22       " 

Samuel  L.  Ward, 

Fairhaven. 

Xlll 


This  Grand-Jury  was  not  charged  by  the  Judge  upon  the  statute 
of  1790,  or  1850,  but  was  referred  to  Mr.  Hallett,  the  Attorney,  for 
the  instructions  previously  given  to  the  Jury  that  had  been  dis- 
charged, namely,  for  his  charge  of  June  7th,  already  referred  to. 
Mr.  William  W.  Greenough,  brother-in-law  of  Judge  Curtis,  was 
one  of  the  Jury.  They  found  the  following  indictment  against  Mr. 
Parker :  — 

UNITED   STATES   OF  AMERICA. 
Circuit  Court  of  the  United  States  of  America,  for  the  District  of  Massachusetts. 

At  a  Circuit  Court  of  the  United  States  of  America,  for  the  District  of  Massachu- 
setts, begun  and  holden  at  Boston,  the  aforesaid  District,  on  the  sixteenth  day  of  Oc- 
tober, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty-four  (the  fifteenth 
day  of  said  October  being  Sunday). 

The  Jurors  of  the  United  States  within  the  aforesaid  District,  on  their  oath,  present. 

1st.  That  heretofore  to  wit,  — on  the  twenty-fourth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eiglit  hundred  and  fifty-four,  a  certain  warrant  and  leaal  process 
directed  to  the  Marshal  of  the  said  District  of  Massachusetts,  or  either  of  his  Deputies, 
was  duly  issued  under  the  hand  and  seal  of  Edward  G.  Loring,  Esquire,  who  was  then 
and  there  a  Commissioner  of  the  Circuit  Court  of  the  United  States,  for  said  District, 
which  said  warrant  and  legal  process  was  duly  delivered  to  Watson  Freeman,  Esquire, 
who  was  then  and  there  an  officer  of  the  United  States,  to  wit,  Marshal  of  the  L'nited 
States,  for  the  said  District  of  IMassachusetts,  at  Boston,  in  the  District  aforesaid,  on 
the  said  twenty-fourth  day  of  ]\Iay  in  the  year  aforesaid,  and  was  of  the  purport  and 
eifect  following,  that  is  to  say  :  — ■ 

UNITED   STATES   OF  AMERICA. 

Massachusetts  District,  ss. 

To  the  Marshal  of  our  District  of  Massachusetts,  or  cither  of  his  Deputies,  Greet- 
ing : 

B 


Xiv  INTRODUCTION. 

In  the  name  of  the  President  of  the  United  States  of  America,  you  are  hereby  com- 
manded forthwith  to  apprehend  Anthony  Burns,  a  negro  man,  alleged  now  to  be  in 
your  District,  charged  with  being  a  fugitive  from  labor,  and  with  having  escaped  from 
service  in  the  State  of  Virginia,  if  he  may  be  found  in  your  precincts,  and  have  him 
forthwith  before  me,  Edward  G.  Loring,  one  of  the  Commissioners  of  the  Circuit 
Court  of  the  United  States  for  the  said  District,  then  and  there  to  answer  to  the  com- 
plaint of  Charles  F.  Suttle,  of  Alexandria,  in  the  said  State  of  Virginia,  Merchant, 
alleging  under  oath  that  the  said  Anthony  Burns  on  the  twenty-fourth  day  of  March 
last,  did  and  for  a  long  time  prior  thereto  had,  owed  service  and  labor  to  him  the  said 
Suttle,  in  the  said  State  of  Virginia,  under  the  laws  thereof,  and  that,  while  held  to 
service  there  by  said  Suttle,  the  said  Burns  escaped  from  the  said  State  of  Virginia, 
into  the  State  of  Massachusetts  ;  and  that  the  said  Burns  still  owes  service  and  labor 
to  said  Suttle  in  the  said  State  of  Virginia,  and  praying  that  said  Burns  may  be 
restored  to  him  said  Suttle  in  said  State  of  Virginia,  and  that  such  further  proceedings 
may  then  and  there  be  had  in  the  premises  as  are  by  law  in  such  cases  provided. 

Hereof  fail  not,  and  make  due  return  of  this  writ,  with  your  doings  therein  before 
me. 

"Witness  my  hand  and  seal  at  Boston,  aforesaid,  this  twenty-fourth  day  of  May,  in  the 
year  one  thousand  eight  hundred  and  fifty-four. 

EDWARD   G.   LORING,  Com77nssioner.     [l.  s.] 

And  the  Jurors  aforesaid  do  further  present,  that  the  said  warrant  and  legal  process, 
being  duly  issued  and  delivered  as  aforesaid,  afterwards  to  wit,  on  the  twenty-fifth  day 
of  May,  in  the  year  aforesaid,  at  Boston  in  said  District,  the  said  Watson  Freeman 
then  and  there  being  an  officer  of  the  said  United  States,  to  wit  Marshal  of  the  Dis- 
trict aforesaid,  and  in  pursuance  of  said  warrant  and  legal  process,  did  then  and  there 
arrest  the  said  Anthony  Burns  named  therein,  and  had  him  before  the  said  Edward  G. 
Loring,  Commissioner,  for  examination  —  and  thereupon  the  hearing  of  the  said  case 
was  adjourned  by  the  said  Commissioner  until  Saturday  the  twenty-seventh  day  of 
May,  in  the  year  aforesaid,  at  ten  o'clock  in  the  forenoon  ;  and  the  said  Marshal,  who 
had  w  made  return  of  the  said  Warrant,  was  duly  ordered  by  the  said  Commissioner 
to  retain  the  said  Anthony  Burns  in  his  custody,  and  have  him  before  the  said  Com- 
missioner on  the  said  twenty-seventh  day  of  May  in  the  year  aforesaid,  at  the  Court 
House  in  said  Boston,  which  said  last-mentioned  legal  process  and  order  was  duly 
issiifd  unfler  tlu;  hand  of  the  said  ICdward  G.  Loring,  Commissioner,  and  was  of  the 
puqxjrt  and  cifect  following,  tliat  is  to  say : 

U.  S.  «)i-  A.MlomCA,  DisTiticT  OF  Massachusetts. 

Boston,  Mai/  25,  1854. 
And  now  tlic  hearing  ol'  this  case  being  adjourned  to  Saturday,  May  27,  1854,  10 
A.  M.,  tlic  Haid  Marshal,  wIk)  has  made  return  of  this  warrant,  is  hereby  oidered  to 
retain  tlie  said  Antlif.uy  I'.urns  in  his  custody,  and  liavc  Iiiui  licfore  me  at  the  time  last 
nii.'nlioiii-d,  at  tin;  C^ourt  House  in  Boston,  (or  llic  furtlicr  licaring  of  the  Complaint  on 
wliicli  the  warrant  was  iftsned. 

EDWARD  G.  LORING,  Comvussioner. 


INTRODUCTIOX.  XV 

And  the  Jnrors  aforesaid  do  further  present,  that  on  tlic  twenty-sixth  day  of  Iklay, 
in  the  year  aforesaid,  in  pursuance  of  the  warrant  and  legal  process  aforesaid,  and  of 
said  further  legal  process  and  order  last  mentioned,  the  said  AVatson  Freeman,  ^Marshal 
as  aforesaid,  then  and  there,  at  the  said  Court  House  in  said  Boston,  had  in  his  custody 
the  person  of  the  said  Anthony  Burns,  in  the  due  and  lawful  execution  of  the  said 
warrant  and  legal  process,  and  of  the  said  further  legal  process  and  order,  in  manner 
and  form  as  he  was  therein  commanded  —  and  one  Theodore  Parker,  of  Boston,  in 
said  District,  Clerk,  then  and  there  well  knowing  the  premises,  with  force  and  arms 
did  knowingly  and  wilfully  obstruct,  resist,  and  oppose  the  said  Watson  Freeman, 
then  and  there  being  an  officer  of  the  said  United  States,  to  wit.  Marshal  of  the  said 
District,  in  serving  and  attempting  to  serve  and  execute  the  said  warrant  and  legal 
process,  and  the  said  further  legal  process  and  order  in  manner  and  form  as  he  was 
therein  commanded,  to  the  great  damage  of  the  said  Watson  Freeman,  to  the  great 
hinderance  and  obstruction  of  Justice,  to  the  evil  example  of  all  others,  in  like  case 
offending,  against  the  peace  and  dignity  of  the  said  United  States,  and  contrary  to  the 
form  of  the  Statute  in  such  case  made  and  provided. 

2d.  And  the  Jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present,  that  on  the 
twenty-sixth  day  of  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-four,  at  Boston,  in  said  District,  one  Theodore  Parker,  of  Boston,  in  said  District, 
Clerk,  with  force  and  arms,  did  knowingly  and  wilfully  obstruct,  resist,  and  oppose  one 
Watson  Freeman,  who  was  then  and  there  the  Marshal  of  the  United  States  of 
America,  for  the  District  of  Massachusetts,  and  an  officer  of  the  said  United  States,  in 
serving  and  attempting  to  serve  and  execute  a  certain  warrant  and  legal  process, 
which  before  that  time,  to  wit,  on  the  twenty-fourth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-four,  had  been  duly  issued  under  the  hand 
and  seal  of  Edward  G.  Loring,  Esquire,  a  Commissioner  of  the  Circuit  Court  of  the 
United  States,  for  said  District  of  Massachusetts,  and  directed  to  the  Marshal  of  the 
District  of  Massachusetts,  or  either  of  his  deputies,  which  said  warrant  and  legal  pro- 
cess the  said  Freeman,  in  the  due  and  lawful  execution  of  his  said  office,  had  then  and 
there  in  his  hands  and  possession  for  service  of  the  same,  and  which  he  was  then  and 
there  serving  and  attempting  to  serve  and  execute  ;  which  said  warrant  commanded 
the  said  Freeman  to  apprehend  one  Anthony  Burns  and  to  have  liim  forthwith  before 
the  said  Commissionei",  then  and  there  to  be  dealt  Avith  according  to  law.  Against  the 
peace  and  dignity  of  the  said  United  States,  and  contrary  to  the  form  of  the  Statute  in 
such  case  made  and  provided. 

3d.  And  the  Jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present,  that  on  tlie 
twenty-sixth  day  of  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-four,  at  Boston,  in  said  District,  the  said  Theodore  Parker,  with  force  and  arms, 
did  knowingly  and  wilfully  obstruct,  resist,  and  oppose  one  Watson  Freeman,  who  was 
then  and  there  an  officer  of  the  said  United  States,  to  wit,  the  Marshal  of  the  United 
States  for  the  said  District  of  Massachusetts,  in  serving  and  attempting  to  serve  and 
execute  a  certain  legal  process  which  before  that  time,  to  wit,  on  the  25th  day  of  [May, 
in  the  year  of  our  Loi-d  one  thousand  eight  hundred  and  fifty-four,  had  been  duly 
issued  under  the  hand  of  Edward  G.  Loring,  who  was  then  and  there  a  Commissioner 
of  the  Circuit  Court  of  the  United  States,  for  the  said  District  of  ^Massachusetts,  and 


xvi  INTRODUCTION. 

■was  tbeu  and  there  duly  empowered  to  issue  said  legal  process,  and  wliicli  said  legal 
process  was  duly  committed  for  obedience  and  execution  to  the  said  Freeman,  IVIarshal 
as  aforesaid,  wherein  and  whereby  and  in  pursuance  of  the  command  whereof  the  said 
Freeman  was  then  and  there  lawfully  retaining,  detaining,  and  holding  one  Anthony 
Burns  for  the  further  hearing  and  determination  of  a  certain  complaint,  upon  which  a 
warrant  before  that  time,  to  wit,  on  the  twenty-fourth  day  of  said  May,  had  been  duly 
issued  under  the  hand  and  seal  of  the  said  Commissioner,  by  force  of  which  warrant 
the  said  Anthony  Burns  had  been  duly  arrested  and  apprehended  by  the  said  Free- 
man, and  in  execution  of  the  same,  on  the  twenty-fifth  day  of  said  May  had  been 
brought  by  the  said  Freeman  before  the  said  Commissioner. 

4th.  And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present,  that  on 
the  twenty-sixth  day  of  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-four,  at  Boston,  in  said  district,  the  said  Theodore  Parker,  with  force  and  arms, 
did  knowingly  and  wilfully  obstruct,  resist,  and  oppose  one  "Watson  Freeman,  who 
was  then  and  there  an  officer  of  the  said  United  States,  to  wit,  Marshal  of  the  United 
States,  for  the  District  of  Massachusetts,  in  serving  and  attempting  to  serve  and  exe- 
cute a  certain  Avarrant  and  legal  process,  which  before  that  time,  to  wit,  on  the  twenty- 
fourth  day  of  May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty-four, 
had  been  duly  issued  under  the  hand  and  seal  of  Edward  G.  Loring,  Esquire,  a  Com- 
missioner of  the  Circuit  Court  of  the  United  States,  for  the  District  of  Massachusetts, 
and  directed  to  the  Marshal  of  the  said  District  of  Massachusetts  or  either  of  his 
Deputies,  which  the  said  Freeman,  in  the  due  and  lawful  execution  of  his  said  oflSce, 
had  then  and  there  in  his  hands  and  possession  for  service  of  the  same,  and  which  he 
was  then  and  there  serving  and  attempting  to  serve  and  execute ;  which  warrant  com- 
manded the  said  Freeman  to  apprehend  one  Anthony  Burns,  and  to  have  him  forth- 
with before  the  said  commissioner  and  that  such  further  proceedings  might  then  and 
there  be  had  in  the  premises,  as  are  by  law  in  such  cases  provided,  —  and  also  in  serv- 
ing and  attempting  to  serve  and  execute  a  certain  further  legal  process  which  before 
that  time,  to  wit,  on  the  twenty-fifth  day  of  May,  in  the  year  aforesaid,  had  been  duly 
issued  under  the  hand  of  the  said  Commissioner,  and  duly  committed  for  obedience 
and  execution  to  the  said  Freeman,  wherein  and  whereby,  and  Jn  pursuance  of  the 
command  whereof,  the  said  Freeman  was  then  and  there  lawfully  retaining,  detaining  > 
and  holding  the  said  Anthony  Burns  for  the  further  hearing  and  determination  of  a 
certain  complaint  upon  which  the  warrant  aforesaid  had  been  issued  by  the  said  Com- 
missioner. 

5th.  And  the  Jurors  aforesaid  on  their  oath  aforesaid,  do  further  present  that  one 
Thcfjdon;  Parker,  of  Boston,  in  said  District,  Clerk,  on  the  26th  day  of  May,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty-four,  at  Boston,  in  the  said 
District  of  Ma.Hs.'u:huHett9,  with  force  and  arms,  in  and  upon  one  Watson  Freeman, 
then  and  there  in  the  peace  of  the  said  United  States  being,  an  assault  did  make,  he 
the  said  Frocnian  also  tlicn  and  there  being  an  officer  of  the  said  United  States,  to  wit, 
Marslia!  of  tlio  United  States,  for  the  said  District  of  IMassachusetts,  and  then  and 
then-  ftNo  l)cing  in  the  due  and  lawful  discharge  of  his  duties  as  such  officer.  And  so 
the  jurorM  aforesaid,  on  tliiir  oath  afurcsaid,  do  say  and  present  that  the  said  Theodore 
Parker,  at  Boston  aforesaid,  on  the  said  twenty-sixth  day  of  said  May,  with  force  and 


INTRODUCTION'.  XVU 

arms  assaulted  the  said  Freeman  as  such  odicer,  aud  knowingly  and  wilfully  obstructed, 
resisted,  and  opposed  him  in  the  discharge  of  his  lawful  duties  in  manner  and  form 
aforesaid,  against  the  peace  and  dignity  of  the  said  United  States,  and  contrary  to  the 
form  of  the  Statute  in  such  cases  made  and  provided.  And  the  Jurors  aforesaid,  on 
their  oath  aforesaid,  do  further  present  that  the  said  Theodore  Parker  was  first  appre- 
hended in  said  District  of  ^lassaehusetts,  after  committing  the  aforesaid  oflencc, 
against  the  peace  and  dignity  of  the  said  United  States,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided.     A  true  bill. 

ENOCH   PATTERSON,  Jr.,  Foreman. 

B.  F.  IIALLETT,  United  States  Attorney  for  the  District  of  Massaclusetis. 

Similar  indictments  were  found  against  Mr.  Phillips,  Mr.  Stow- 
ell,  Rev.  T.  "VV.  Higginson,  John  Morrison,  Samuel  T.  Proudman, 
and  John  C.  Cluer. 

Mr.  Parker  was  arraigned  on  Wednesday,  November  29th,  and 
ordered  to  recognize  in  bonds  of  $  1,500  for  his  appearance  at  that 
Court,  on  the  5th  of  March,  1855.  His  bondsmen  were  Messrs. 
Samuel  May,  Francis  Jackson,  and  John  R.  Manley ;  his  counsel 
were  Hon.  John  P.  Hale,  and  Charles  M.  Ellis,  Esq.  The  other 
gentlemen  were  arraigned  afterwards  at  different  times. 

After  considerable  uncertainty  about  the  engagements  of  Hon. 
Justice  Curtis,  Tuesday,  April  3d,  was  fixed  for  the  commencement 
of  the  trials.  At  that  time  there  appeared  as  counsel  for  the  govern- 
ment, Hon.  Benjamin  F.  Hallett,  District  Attorney,  and  Elias  INler- 
win,  Esq.,  formerly  a  law  partner  of  Judge  Curtis ;  on  the  other  side 
were  Hon.  John  P.  Hale,  and  Charles  M.  Ellis,  Esq.,  for  Mr.  Parker ; 
Wm.  L.  Burt,  Esq.,  John  A.  Andrew,  Esq.,  and  H.  F.  Durant,  Esq., 
counsel  for  Messrs.  Phillips,  Higginson,  Stowell,  Bishop,  Morrison, 
Proudman,  and  Cluer. 

Mr.  Hale,  as  senior  counsel,  stated  to  the  court  that  the  counsel  for 
the  defendants  in  several  of  the  cases  had  conferred,  and  concluded 
—  on  the  supposition  that  the  Court  and  Government  would  assent 
to  the  plan  as  most  for  their  own  convenience,  as  well  as  that  of  the 
defendants'  counsel  —  to  file  the  like  motion  on  the  different  cases  ; 
and,  instead  of  each  counsel  going  over  the  whole  ground  for  each 
case,  to  divide  the  matter  presented  for  debate,  and  for  each  to  dis- 
cuss some  particular  positions  on  behalf  of  them  all.      This  was 


XVlll  INTRODUCTION. 

assented  to;  and  motions,  of  which  the  following  is  a  copy,  were 
filed  in  the  several  cases  :  — 

Circuit  Court  of  the  Uxited  States,  Massachusetts  District,  ss. 
United  States  by  Indictment  v.  Theodore  Parker. 

And  now  said  Theodore  Parker  comes  and  moves  that  the  indictment  against  him 
be  quashed,  because, 

"  1.  The  •writ  of  venire  for  the  jury  that  found  said  indictment  was  directed  to  and 
returned  by  Watson  Freeman,  the  Marshal,  who  was  not  an  indifferent  person,  and 
it  was  not  served  and  returned  as  the  law  directs. 

"  2.  Because  said  Jury  was  not  an  impartial  Jury  of  the  District,  designated  as  the 
laws  require,  but  the  jury  Districts  for  this  court  embrace  but  a  portion  of  the  District 
and  of  the  population,  and  said  jury  was  in  fact  chosen  and  designated  from  but  a  frac- 
tion of  the  District  and  contrary  to  law. 

"  3.  Because  the  matters  and  things  alleged  In  said  indictment  do  not  constitute  any 
crime  under  the  statute  on  which  said  indictment  Is  framed,  the  said  statute  not  em- 
bracing them,  or  being,  so  far  as  it  might  embrace  them,  repealed  by  the  statute  of 
eighteen  hundred  and  fifty. 

"  4.  Because  said  indictment  does  not  allege  and  set  forth  fully  and  sufficiently  the 
authority  and  the  proceedings  whereon  the  alleged  warrant  and  order  were  based, 
or  facts  sufficient  to  show  that  the  alleged  process  and  order  were  lawfully  issued  by 
any  person  duly  authorized,  and  his  authority  and  jurisdiction,  and  that  the  same  were 
within  such  jurisdiction,  and  issued  by  the  authority  of  the  law,  and  originated,  Issued, 
and  directed  as  the  law  prescribes  ;  said  warrant  and  order  not  being  alleged  to  have 
issued  from  any  court  or  tribunal  of  general  or  special  jurisdiction,  but  by  a  person 
vested  with  certain  specific  statute  authority. 

"5.  Because  said  indictment  and  the  several  counts  thereof  are  bad  on  the  face  of 
them,  as  follows,  viz. :  — 

"  First,  it  nowhere  appearing  tliat  the  same  were  found  by  a  grand-jury,  because  the 
eecoiid  and  third  counts  do  not  conclude,  against  the  form  of  the  statute,  and  have  no 
conclusion,  because  the  third  and  fourth  counts  do  not  set  forth  the  estate,  degree,  or 
mysterj'  of  the  person  therein  charged. 

"  Because  said  indictment  and  tlie  counts  thereof  are  repugnant  and  inconsistent,  the 
Banic  bfiiig  Inscid  on  an  alleged  obstruction,  resistance,  and  opposition  to  the  service  of 
an  acllon,  order,  or  warrant,  which  is  therein  averred  to  have  been  already  served, 
cxfciitid,  and  rcturncfl. 

"  BecnuHc  the  first  and  lillh  counts  are  double. 

♦«  Because  the  alleged  order  of  May  25th,  referred  to  therein,  was  a  void  and  illegal, 
order. 

"  I{»'.<'aiiHc,  if  the;  alicgi'd  warrant  was  served  as  Ihercin  alleged,  said  Watson  Free- 
man did  not,  and  l>y  law  could  not  thereafter,  hold  the  person  described  therein,  under 
any  jiroccKH  or  order. 

"  And  because  the  .same  do  not  set  forth  and  allege  fully  and  specifically  the  acts 


INTRODUCTION.  XIX 

charged  to  be  offences  against  tlic  statute,  so  as  to  inform  said  party  cliarged,  of  the 
nature  and  cause  of  the  accusation. 

"  6.  Because  the  warrant  sot  forth  and  referred  to  therein  was  void  on  its  face,  and 
issued  from  and  ran  into  a  jurisdiction  not  authorized  by  law,  and  directed  the  arrest 
of  a  person  without  legal  cause,  and  because  said  indictment  is  otherwise  bad,  uncer- 
tain, and  insufficient." 

Mr.  Wm.  L.  Burt  commenced  the  argument  of  the  motions,  and 
presented  several  of  the  points.  He  was  followed  by  Mr.  C.  M. 
Ellis,  J.  A.  Andrew,  and  H.  F.  Durant,  who  severally  discussed 
some  of  the  grounds  of  the  motions. 

Elias  Merwin,  Esquire,  and  Mr.  Attorney  Hallett,  replied. 

The  Court  stated  that  they  did  not  wish  to  hear  Hon.  John  P. 
Hale,  who  was  about  to  rejoin  and  close  in  support  of  the  motion, 
and  decided  that  the  allegation,  on  the  indictment,  that  Edward  G. 
Loring  was  a  Commissioner  of  the  Circuit  Court  of  the  United 
States  for  said  District,  was  not  a  legal  averment  that  he  was  such  a 
Commissioner  as  is  described  in  the  bill  of  1850,  and  therefore  the 
indictments  were  bad. 

The  Court  said  they  supposed  it  to  be  true  that  Mr.  Loring  was 
such  a  Commissioner,  and  that  his  authority  could  be  proved  by 
producing  the  record  of  his  appointment ;  that  they  did  not  suppose 
the  absence  of  this  averment  could  be  of  any  practical  consequence 
to  the  defendants,  so  far  as  respected  the  substantial  merits  of  the 
cases  ;  and  it  was  true  the  objection  to  the  indictment  was  "  tech- 
nical;" but  they  held  it  sufficient,  notwithstanding  the  averment  that 
the  warrant  was  "  duly  issued,^''  and  ordered  the  indictment  against 
Stowell  to  be  quashed.  On  every  other  point,  save  that  that  the 
Court  could  properly  construct  the  Jury  roster  and  return  the  Jury 
from  a  portion  of  the  District,  the  Judge  said  they  would  express  no 
opinion. 

Mr.  Hallett  insisted  on  his  right  to  enter  a  nolle  prosequi  in  the 
other  cases ;  and  the  Judges  decided  that,  though  all  the  cases  had 
been  heard  upon  the  motion,  yet  as  it  could  make  no  difference 
whether  an  entry  were  made  that  this  indictment  be  quashed,  or  an 


XX  INTRODUCTION. 

entry  of  nolle  prosequi,  the  Attorney  might  enter  a  nolle  prosequi  if 
he  chose  to  do  so  then,  before  the  Court  passed  any  order  on  the 
motions. 

]\Ir.  Hallett  accordingly  entered  a  nolle  prosequi  in  all  the  other 
cases,  and  the  whole  affair  was  quashed.^ 

^  See  Law  Reporter  for  June,  1855. 


DEFENCE. 


May  it  please  the  Couet: 

Gentlemen  of  the  Jury. —  It  is  no  trifling  matter  which  comes 
before  you  this  day.  You  may  hereafter  decide  on  millions  of  money, 
and  on  the  lives  of  your  fellow  men ;  but  it  is  not  likely  that  a  ques- 
tion of  this  magnitude  will  ever  twice  be  brought  before  the  same 
jurymen.  Opportunities  to  extend  a  far-reaching  and  ghastly  wicked- 
ness, or  to  do  great  service  for  mankind,  come  but  seldom  in  any 
man's  life.  Your  verdict  concerns  all  the  people  of  the  United 
States  ;  its  influence  will  reach  to  ages  far  remote,  blessing  or  cursing 
whole  generations  not  yet  born.  The  affair  is  national  in  its  width  of 
reach,  —  its  consequences  of  immense  duration. 

In  addressing  you.  Gentlemen,  my  language  will  be  more  didactic 
than  rhetorical,  more  like  a  lecture,  less  like  a  speech ;  for  I  am  not  a 
lawyer  but  a  minister,  and  do  not  aim  to  carry  a  Measure,  which 
with  you  will  go  of  its  own  accord,  so  much  as  to  set  forth  a  Principle 
that  will  make  such  prosecutions  as  impossible  hereafter,  as  a  convic- 
tion now  is  to-day. 

Gentlemen,  I  address  you  provisionally,  as  Representatives  of  the 
People.  To  them,  my  words  are  ultimately  addressed,  —  to  the 
People  of  the  Free  States  of  America.  I  must  examine  many  things 
minutely,  not  often  touched  upon  in  courts  like  this.  For  mine  is  a 
Political  Trial ;  I  shall  treat  it  accordingly.  I  am  charged  with  no 
immoral  act  —  with  none  even  of  selfish  ambition.  It  is  not  pre- 
tended that  I  have  done  a  deed,  or  spoken  a  word,  in  the  heat  of 
passion,  or  vengeance,  or  with  calculated  covetousness,  to  bring 
money,  office,  or  honor,  to  myself  or  any  friend.  I  am  not  suspected 
of  wishing  to  do  harm  to  man  or  woman ;  or  with  disturbing  any 
man's  natural  rights.  Nay,  I  am  not  even  charged  with  such  an 
offence.  The  Attorney  and  the  two  Judges  are  of  one  heart  and 
mind  in  this  prosecution  ;  Mr,  Hallett's  "  Indictment "  is  only  the 
beast  of  burthen  to  carry  to  its  own  place  Mr.  Curtis's  "  Charge  to  the 

1 


2  PRELIMINARY. 

Grand- Jury,"  fit  passenger  for  fitting  carriage  !  The  same  tree  bore 
the  Judge's  blossom  in  June,  and  the  Attorney's  fruit  in  October,  — 
both  reeking  out  the  effluvia  of  the  same  substance.  But  neither 
Attorney  nor  Judge  dares  accuse  me  of  ill-will  which  would  harm 
another  man,  or  of  selfishness  that  seeks  my  own  private  advantage. 
No,  Gentlemen  of  the  Jury,  I  am  on  trial  for  my  love  of  Justice  ;  for 
my  respect  to  the  natural  Rights  of  Man ;  for  speaking  a  word  in 
behalf  of  what  the  Declaration  of  Independence  calls  the  "  self-evi- 
dent "  Truth,  —  that  all  men  have  a  natural,  equal,  and  unalienable 
Right  to  Life,  Liberty,  and  the  pursuit  of  Happiness.  I  am  charged 
with  words  against  what  John  Wesley  named,  the  "  Sum  of  all  Vil- 
lanies,"  against  a  national  crime  so  great,  that  it  made  freethinking 
Mr.  Jefferson,  with  all  his  "  French  Lifidelity,"  "  tremble "  when  he 
remembered  "  that  God  is  just."  I  am  on  trial  for  my  manly  virtue, 
—  a  Minister  of  the  Christian  Religion  on  trial  for  keeping  the  Golden 
Rule  I  It  is  alleged  that  I  have  spoken  in  Boston  against  kidnapping 
in  Boston  ;  that  in  my  own  pulpit,  as  a  minister,  I  have  denounced 
Boston  men  for  stealing  my  own  parishioners ;  that  as  a  man,  in 
Faneuil  Hall,  the  spirit  of  James  Otis,  of  John  Hancock,  and  three 
Adams's  about  me,  with  a  word  I  "  obstructed  "  the  Marshal  of  Bos- 
ton and  a  Boston  Judge  of  Probate,  in  their  confederated  attempts  to 
enslave  a  Boston  man.  When  the  Government  of  the  United  States 
has  turned  kidnapper,  I  am  charged  with  the  "misdemeanor"  of 
appealing  from  the  Atheism  of  purchased  officials  to  the  Conscience 
of  the  People ;  and  with  rousing  up  Christians  to  keep  the  golden 
rule,  when  the  Rulers  declared  Religion  had  nothing  to  do  wdth 
politics  and  there  was  no  Law  of  God  above  the  fugitive  slave  bill! 

Such  are  the  acts  charged.  Gentlemen  of  the  Jury,  you  are  sum- 
moned here  to  declare  them  a  Crime,  and  then  to  punish  me  for  this 
"  ofi'encc  I "  You  are  the  Axe  which  the  Government  grasps  with 
red  hand  to  cleave  my  head  asunder.  It  is  a  trial  where  Franklin 
Pierce,  transiently  President  of  the  United  States,  and  his  official 
coadjutors, —  Mr.  Caleb  Cushing,  Mr.  Benj.  R.  Curtis,  and  Mr.  Benj. 
F.  Hallrtt,  —  arc  on  one  side,  and  the  People  of  the  United  States 
on  the  other.  As  a  Measure,  your  decision  may  send  me  to  jail  for 
twelve  months;  may  also  fine  me  three  hundred  dollars.  To  me  per- 
sonally it  is  of  very  small  consequence  what  your  verdict  shall  be. 
The  fine  is  nothing;  the  imprisonment  for  twelve  months  —  Gentle- 
men,^! laugh  at  it  I  Nay,  were  it  death,  I  should  smile  at  the  official 
gibbet,  A  verdict  of  guilty  would  affix  no  stain  to  my  reputation. 
I  am  sure  to  come  out  of  this  trial  with  honor  —  it  is  the  Court  that 
is  Hiire  to  HufTrr  Iohh  —  at  least  shame.  I  do  not  mean  the  Court  will 
ever  feel  rernorHc,  or  ev(Mi  shame,  for  this  conduct;  I  am  no  young 
man  now,  I  know  th(!He  men,  —  but  the  People  are  sure  to  burn  the 


PRELIMINARY.  3 

brand  of  shame  deep  into  this  tribunal.     The  blow  of  that  axe,  if  not 
parried,  will  do  me  no  harm. 

But  it  is  not  I,  merely,  now  put  to  trial.  Nay,  it  is  the  unalienable 
Rights  of  Humanity,  it  is  truths  self-evident.  For  on  the  back  of 
that  compliant  Measure,  unseen,  there  rides  a  Principle.  The  verdict 
expected  of  you  condemns  liberal  institutions :  all  Religion  but 
priestcraft  —  the  abnegation  of  religion  itself;  all  Rights  but  that  to 
bondage  —  the  denial  of  all  rights.  The  w^ord  which  fines  me,  puts 
your  own  purse  in  the  hands  of  your  worst  enemies;  the  many- 
warded  key  which  shuts  me  in  jail,  locks  your  lips  forever  —  your 
children's  lips  forever.  No  complaint  against  oppression  hereafter! 
Kidnapping  will  go  on  in  silence,  but  at  noonday,  not  a  minister 
stirring.  Meeting-houses  will  be  shut ;  all  court  houses  have  a  loaded 
cannon  at  their  door,  chains  all  round  them,  be  stuffed  with  foreign 
soldiers  inside,  while  commissioners  swear  away  the  life,  the  liberty, 
and  even  the  Estate  of  the  subjected  "  citizens."  All  Probate  Judges 
will  belong  to  the  family  of  man-stealers.  Faneuil  Hall  will  be  shut, 
or  open  only  for  a  "  Union  Meeting,"  where  the  ruler  calls  together 
his  menials  to  indorse  some  new  act  of  injustice,  —  only  creatures  of 
the  Government,  men  like  the  marshal's  guard  last  June,  allowed  to 
speak  words  paid  for  by  the  People's  coward  sweat  and  miserable 
blood.  The  blow  which  smites  my  head  will  also  cleave  you  asun- 
der from  crown  to  groin. 

Your  verdict  is  to  vindicate  Religion  with  Freedom  of  Speech, 
and  condemn  the  stealing  of  men;  or  else  to  confirm  Kidnapping  and 
condemn  Religion  with  Freedom  of  Speech.  You  are  to  choose 
whether  you  will  have  such  men  as  Wendell  Phillips  for  your  advis- 
ers, or  such  as  Benjamin  F.  Hallett  and  Benjamin  R.  Curtis  for  your 
masters,  with  the  marshal's  guard,  for  their  appropriate  servants. 
Do  you  think  I  doubt  how  you  will  choose  ? 

Already  a  power  of  iniquity  clutches  at  your  children's  throat; 
stabs  at  their  life  —  at  their  soul's  life.  I  stand  between  the  living 
tyrant  and  his  living  victim  ;  aye,  betwixt  him  and  expected  victims 
not  yet  born,  —  your  children,  not  mine.  I  have  none  to  writhe 
under  the  successful  lash  which  tyrants  now  so  subtly  braid  there- 
with, one  day,  to  scourge  the  flesh  of  well-descended  men.  I  am  to 
stand  the  champion  of  human  Rights  for  generations  yet  unborn. 
It  is  a  sad  distinction  I  Hard  duties  have  before  been  laid  on  me,  — 
none  so  obviously  demanding  great  powers  as  this.  Whereto  shall  I 
look  up  for  inspiring  aid?  Only  to  Him  who  gave  words  to  the 
slow  tongue  of  Moses  and  touched  with  fire  Esaias'  hesitating  lips, 
and  dawned  into  the  soul  of  tent-makers  and  fishermen  with  such 
great  wakening  light,  as  shining  through  them,  brought  day  to  na- 
tions sitting  in  darkness,  yet  waiting  for  the  consolation.     May  such 


4  FORMER   VISITS   TO   THE   COURT   HOUSE. 

Truth  and  Justice  enable  me  also,  to  speak  a  testimony  unto  the 
Gentiles ;  He  who  chose  the  weak  things,  to  bring  to  nought  the 
mio^hty,  may  not  despise  such  humble  services  as  mine. 

Gentlemen  of  the  Jury,  my  ministry  deals  chiefly  with  the  Laws  of 
God,  little  with  the  statutes  of  men.  My  manhood  has  been  mainly 
passed  in  studying  absolute,  universal  truth,  teaching  it  to  men, 
and  applying  it  to  the  various  departments  of  life.  I  have  little  to  do 
with  courts  of  law.  Yet  I  am  not  now  altogether  a  stranger  to  the 
circuit  court  room  of  the  United  States,  having  been  in  it  on  five 
several  occasions  before. 

1.  A  Polish  exile,  —  a  man  of  famous  family,  ancient  and  patri- 
cian before  Christendom  had  laid  eyes  on  America,  once  also  of  great 
individual  wealth,  a  man  of  high  rank  alike  acquired  and  inherited, 
once  holding  a  high  place  at  the  court  of  the  Czar,  —  became  a  fugi- 
tive from  Russian  despotism,  seeking  an  asylum  here ;  he  came  to 
the  circuit  court  room  to  lecture  on  the  Roman  Law.  I  came  to 
contribute  my  two  mites  of  money,  and  receive  his  wealth  of 
learning. 

2.  The  next  time,  I  came  at  the  summons  of  Thomas  Sims.  For 
a  creature  of  the  slave-power  had  spontaneously  seized  that  poor  and 
friendless  boy  and  thrust  him  into  a  dungeon,  hastening  to  make  him 
a  slave,  —  a  beast  of  burthen.  He  had  been  on  his  mock  trial  seven 
days,  and  had  never  seen  a  Judge,  only  a  commissioner,  nor  a  Jury ; 
no  Court  but  a  solitary  kidnapper.  Some  of  his  attendants  had 
spoken  of  me  as  a  minister  not  heedless  of  the  welfare  and  unalien- 
able rights  of  a  black  man  fallen  among  a  family  of  thieves.  I  went 
to  the  court  house.  Outside  it  was  belted  with  chains.  In  des- 
potic Europe  1  hud  seen  no  such  spectacle,  save  once  when  the  dull 
tyrant  who  op|)ressed  Bavaria  with  his  licentious  flesh,  in  1844  put 
his  capital  in  a  brief  state  of  siege  and  chained  the  streets.  The 
odlcial  servant  of  the  kidnapper,  club  in  hand,  a  policeman  of  this 
city,  goaded  to  his  task  by  Mayor  Bigelow  and  Marshal  Tukey, — 
rricn  congcnitaily  mingled  in  such  appropriate  work,  —  bade  me 
"  Get  under  the  chain."  I  pressed  it  down  and  went  over.  The 
Judges  of  our  own  Su|)reme  Court,  tlwij  ivcnt  under,  —  had  gone  out 
and  in,  l)»,-ncatii  tin;  ciiainl  How  ])0('try  mingles  with  facti  The 
chain  was  a  syniltol,  and  until  this  day  rcmaineth  the  same  chain, 
uritakr-n  away  in  the  reading  of  the  fugitive  slave  bill;  and  when  the 
hiw  of  Massiu  luisctts  is  read,  the  chain  is  also  upon  the  neck  of  that 
court  I  Within  the  court  house  was  full  of  armed  men.  I  found 
Mr.  Sims  in  a  private  room,  illrgally,  in  deiiance  of  Massachusetts 
law,  converted  into  a  jail  to  hold  men  charged  with  no  crime.  Ruf- 
iiuns   mounted  guard   at    the  entrance,  armed  with  swords,  fire-arms, 


FORMER  VISITS   TO   THE   COURT  HOUSE.  O 

and  bludgeons.  The  door  was  locked  and  doubly  barred  besides. 
Inside  the  watch  was  kept  by  a  horrid  looking  fellow,  without  a 
coat,  a  naked  cutlass  in  his  hand,  and  some  twenty  others,  their 
mouths  nauseous  with  tobacco  and  reeking  also  with  half-digested 
rum  paid  for  by  the  city.  In  such  company,  I  gave  what  consola- 
tion Religion  could  otter  to  the  first  man  Boston  ever  kidnapped,  — 
consolations  which  took  hold  only  of  eternity,  where  the  servant  is 
free  from  his  master,  for  there  the  wicked  cease  from  troubling.  I 
could  offer  him  no  comfort  this  side  the  grave. 

3.  I  visited  the  United  States  court  a  third  time.  A  poor  young 
man  had  been  seized  by  the  same  talons  which  subsequently  griped 
Sims  in  their  poison,  deadly  clutch.  But  that  time,  wickedness  went 
off  hungry,  defeated  of  its  prey ;  "  for  the  Lord  delivered  him  out  of 
their  hands,"  and  Shadrach  escaped  from  that  Babylonish  furnace, 
heated  seven  times  hotter  than  its  wont:  no  smell  of  fire  had  passed 
on  him.  But  the  rescue  of  Shadrach  was  telegraphed  as  "  treason." 
The  innocent  lightning  flashed  out  the  premeditated  and  legal  lie, — 
"  it  is  levying  war!  "  What  offence  it  was  in  that  Fourth  One  who 
walked  with  the  Hebrew  children,  "  making  their  good  confession," 
and  sustained  the  old  Shadrach,  Meshech,  and  Abednego,  I  know  not. 
But  the  modern  countrymen  of  the  African  Shadrach,  charged  with 
some  great  crime,  were  haled  into  this  court  to  be  punished  for 
their  humanity!  I  came  to  look  on  these  modern  Angels  of  the 
Deliverance,  to  hear  counsel  of  Mr.  Dana,  then  so  wise  and  humane, 
and  to  listen  to  the  masterly  eloquence  which  broke  out  from  the  great 
human  heart  of  my  friend,  Mr.  Hale,  and  rolled  like  the  Mississippi, 
in  its  width,  its  depth,  its  beauty,  and  its  continuous  and  unconquer- 
able strensjth. 

4.  The  fourth  time,  a  poor  man  had  been  kidnapped,  also  at  night, 
and  forced  into  the  same  illegal  jail.  He  sat  in  the  dock  —  an  inno- 
cent man,  to  be  made  into  a  beast.  The  metamorphosis  had  begun ; 
—  he  was  already  in  chains  and  his  human  heart  seemed  dead  in 
him;  sixty  ruffians  were  about  him,  aiding  in  this  drama,  hired  out 
of  the  brothels  and  rum-shops  for  a  few  days,  the  lust  of  kidnapping 
serving  to  vary  the  continual  glut  of  those  other  and  less  brutal  appe- 
tites of  unbridled  flesh.  While  that  "  trial "  lasted,  whoredom  had 
a  Sabbath  day,  and  brawlers  rested  from  their  toil.  Opposite  sat  the 
Boston  Judge  of  Probate,  and  the  Boston  District  Attorney,  —  the 
Moses  and  Elias  of  this  inverted  transfiguration ;  there  sat  the  mar- 
shal, two  "  gentlemen  "  from  Virginia,  claiming  that  a  Boston  man 
was  their  beast  of  burthen,  owing  service  and  labor  in  Richmond ; 
two  "  lawyers,"  "  members  of  the  Suffolk  bar,"  pistols  in  their  coats, 
came  to  support  the  allegation  and  enforce  the  claim.  Honorable 
men  stood  up  to  defend  him.     There  is  one  of  them, — to  defend 

1* 


6  FORMER  VISITS   TO   THE   COURT  HOUSE. 

me  [Charles  jNI.  Ellis.]  You  know  very  well  the  rest  of  that  sad 
story,  —  the  mock  trial  of  Anthony  Burns  lasted  from  May  25th  till 
June  2d.  I  was  here  in  all  the  acts  of  that  Tragedy.  My  own  life 
was  threatened ;  friend  and  foe  gave  me  public  or  anonymous  warn- 
ing. I  sat  between  men  who  had  newly  sworn  to  kill  me,  my  gar- 
ments touching  theirs.  The  malaria  of  their  rum  and  tobacco  was  an 
offence  in  my  face.  I  saw  their  weapons,  and  laughed  as  I  looked 
those  drunken  rowdies  in  their  coward  eye.     They  touch  me ! 

5.  The  fifth  time  I  came  here  at  the  summons  of  an  ofHcer  of  this 
court, — very  politely  delivered,  let  rae  say  it  to  his  credit,  —  indicted 
and  arrested  for  a  "  misdemeanor."     I  gave  bail  and  withdrew. 

6.  The  sixth  time,  —  Gentlemen,  —  it  is  the  present,  whereof  I  shall 
erelong  have  much  to  say. 

At  the  first  visit  I  found  only  scholarly  and  philanthropic  gentle- 
men, coming  out  of  sympathy  with  a  Polish  exile,  a  defeated  soldier 
of  freedom,  from  his  broken  English  to  learn  sound  Roman  Law 
On  each  of  the  other  visits  I  have  been  in  quite  different  company.  I 
have  invariably  met  this  Honorable  Court,  its .  kinsfolk  and  its  most 
intimate  friends,  —  some  member  of  the  family  of  the  distinguished 
Judge,  now  fitly  presiding  over  this  trial. 

1.  It  was  Mr.  George  T.  Curtis,  the  only  brother  of  the  honorable 
Justice  now  on  the  bench,  —  born  of  the  same  mother  and  father, — who 
had  the  glory  of  kidnapping  Mr.  Sims ;  it  was  he  who  seized  Sha- 
drach,  and  gave  such  witness  against  one  of  the  Angels  of  the  Deliv- 
erance, and  then  came  back  and  enlarged  his  testimony;  it  was  he 
who  declared  the  rescue  an  act  of  "treason;"  he  who  hung  the 
court  house  in  chains,  and  brought  down  the  pliant  neck  of  the 
Massachusetts  Judges  beneath  that  symbolic  line  of  linked  fetters 
long  drawn  out.  To  what  weak  forces  will  such  necks  bow  when 
slavt-ry  commands! 

2.  It  was  the  honorable  Judge  now  on  the  distinguished  bench 
who  tried  men  for  the  rescue  of  Shadrach.  How  he  tried  them  is 
well  known. 

;j.  It  was  Edward  CJ.  Loring,  another  of  this  family  so  distin- 
guished, who  kidnapped  Mr.  Burns  and  held  him  in  irons;  he  whose 
broom  Hwej)t  up  togetiier  the  marshal's  guard ;  he  who  advised  Mr. 
Burns'rt  counsel  to  make  no  defence, —  "put  no  obstructions  in  the 
way  of  his  going  bac^k,  as  he  |)rt)bably  will ;"  he  who,  in  the  dark- 
ncMH  of  midnight,  sought  to  sell  his  victim,  before  he  had  examined 
the  fvUlnnr  which  might  prove  him  a  freeman;  he  who  delivered 
him  uj)  art  a  MJav*',  against  evidence  as  against  law. 

4.  Another  of  the  sam(!  family,  William  W.  Grecnough,  brother- 
in-law  of   J  loll.  .Iiulgc    Curtis,  was    one    of    the    grand-jury   which 


ARRAIGNMENT.  7 

found  the  indictment  against  me,  and  "  the  most  active  of  all  in  that 
work." 

5.  When  I  came  here  on  the  29tli  of  last  November,  the  Hon. 
Judge  Curtis  sat  on  the  bench  and  determined  the  amount  of  my 
bail,  and  the  same  eye  which  had  frowned  with  such  baleful  aspect  on 
the  rescuers  of  Shadrach,  quailed  down  underneath  my  look  and 
sought  the  ground. 

In  thus  mentioning  my  former  visits  to  the  court,  I  but  relate  the 
exploits  of  the  Hon.  Justice  Curtis,  of  his  kinsfolk  and  friends,  adding 
to  their  glory  and  their  renown.  Their  chief  title  to  distinction  rests 
on  their  devotion  to  the  fugitive  slave  bill.  It  and  their  honor  are 
"one  and  inseparable."  Once  only  humanity  and  good  letters 
brought  me  here,  I  met  only  scholars  and  philanthropists ;  on  five 
other  occasions,  when  assaults  on  freedom  compelled  my  attendance, 
I  have  been  confronted  and  surrounded  with  the  loyalty  of  the  distin- 
guished Judge  and  his  kinsfollc  and  friends,  valiantly  and  disinterest- 
edly obeying  the  fugitive  slave  bill  "  with  alacrity ; "  patriotically 
conquering  their  prejudices  against  man-stealing  —  if  such  they  ever 
had;  —  and  earning  for  themselves  an  undying  reputation  by  "sav- 
ing the  Union "  from  Justice,  Domestic  Tranquillity,  general  Wel- 
fare, and  the  Blessings  of  Liberty. 

If  I  am  to  be  arraigned  for  any  act,  I  regard  it  as  a  special  good 
fortune  that  I  am  charged  with  such  deeds,  with  seeking  to  arouse 
the  noblest  emotions  of  Human  Nature ;  and  by  means  of  the  grand- 
est Ideas  which  Human  History  has  brought  to  light.  I  could  not 
have  chosen  nobler  deeds  in  a  life  now  stretching  over  nearly  half  a 
hundred  years.  I  count  it  an  honor  to  be  tried  for  them.  Nay,  it 
adds  to  my  happiness  to  look  at  the  Court  which  is  to  try  me  —  for  if 
I  were  to  search  all  Christendom  through,  nay,  throughout  all  Hea- 
thendom, I  know  of  no  tribunal  fitter  to  try  a  man  for  such  deeds  as 
I  have  done.  I  am  fortunate  in  the  charges  brought;  thrice  fortunate 
in  the  judges  and  the  attorney,  —  the  Court  which  is  to  decide;  — 
its  history  and  character  are  already  a  judgment. 

6.  For  my  sixth  visit,  I  was  recognized  to  appear  on  the  fifth 
of  March,  1855  —  the  eighty-fifth  anniversary  of  the  Boston  Massacre. 
•I  might  have  been  bound  over  to  any  other  of  the  great  days  of 
American  history  —  22d  of  December,  19th  of  April,  17th  of  June,  or 
the  4th  of  July.  But  as  I  am  the  first  American  ever  brought  to 
trial  for  a  speech  in  Faneuil  Hall  against  kidnapping ;  as  I  am  the 
first  to  be  tried  under  the  act  of  1790  for  "  obstructing  an  officer " 
with  an  argument,  committing  a  "  misdemeanor  "  by  a  word  which 
appeals  to  the  natural  justice  of  mankind,  so  there  could  not  perhaps 
be  a  fitter  time  chosen.     For  on  the  fifth  of  March,  1770,  British 


8  THE  JUDGES  AND  THE  JURY. 

despotism  also  delivered  its  first  shot  into  the  American  bosom. 
Not  far  from  this  place  the  hand  of  George  III.  wounded  to  death 
five  innocent  citizens  of  Boston, —  one  of  them  a  negro.  It  was  the 
first  shot  Britain  ever  fired  into  the  body  of  the  American  people, 
then  colonial  subjects  of  the  king-power.  That  day  the  fire  was  not 
returned,  —  only  with  ringing  of  bells  and  tumult  of  the  public,  with 
words  and  resolutions.  The  next  day  that  American  blood  lay  frozen 
in  the  street.  Soon  after  the  British  government  passed  a  law  ex- 
empting all  who  should  aid  an  officer  in  his  tyranny  from  trial  for 
murder  in  the  place  where  they  should  commit  their  crime.  Mr. 
Toucey  has  humbly  copied  that  precedent  of  despotism.  It  was 
very  proper  that  the  new  tyranny  growing  up  here,  should  select  that 
anniversary  to  shoot  down  freedom  of  thovight  and  speech  among 
the  subjects  of  the  slave-power.  I  welcomed  the  omen.  The  Fifth 
of  March  is  a  red-letter  day  in  the  calendar  of  Boston.  The  Court 
could  hardly  have  chosen  a  better  to  punish  a  man  for  a  thought  and 
a  word,  especially  a  Boston  man,  for  such  a  word  in  Faneuil  Hall  — 
a  word  against  man-stealing.  But  I  knew  the  case  would  never 
come  to  trial  on  that  day  —  of  course  it  was  put  off. 

Mr.  Sims  and  Mr.  Burns  were  accused  of  no  crime  but  birth  from 
a  mother  whom  some  one  had  stolen.  They  had  only  a  mock  trial, 
without  due  process  of  law,  with  no  judge,  no  jury,  no  judicial 
officer.  But  I,  accused  of  a  grave  offence,  am  to  enjoy  a  trial  with 
due  process  of  law.  It  is  an  actual  judge  before  me  and  another 
judge  at  his  side,  both  judicial  officers  known  to  the  constitution.  I 
know  beforehand  the  decision  of  the  court  —  its  history  is  my  judg- 
ment. Justice  Curtis's  Charge  of  last  June,  would  make  my  daily 
talk  a  "  misdemeanor,"  my  public  preaching  and  my  private  prayers 
a  "  crime,"  nay,  my  very  existence  is  constructively  an  "  obstruc- 
tion"  to  tiie  marshal.  On  that  side  my  condemnation  is  already 
.'iure. 

But  there  is  anotlicr  clenient.  Gentlemen  of  the  Jury,  the  judges 
and  attorney  cannot  lay  their  hand  on  me  until  you  twelve  men  with 
one  voice  say,  "Yes!  put  liim  in  jail."  In  the  mock  trial  of  Sims 
and  Burns  it  was  niH-cssary  to  convince  only  a  single  official  of  the 
I'nitcd  States  Court,  a  "  ministerial "  officer  selected  and  appointed 
to  do  it.s  inferior  business,  a  man  who  needed  no  conviction,  no  evi- 
dence but  the  oath  of  a  slavohnnter  and  the  extorted  "admission" 
f)f  hJH  victim,  an  ofiieial  who  was  to  have  ten  dollars  for  making  a 
flave,  five  only  for  setting  free  a  maul  But  you  arc  a  Massachusetts 
Jury,  not  of  purchased  oflicials,  but  of  honest  men.  I  think  you 
have  «ome  "prejudices"  to  eonciuer  in  favor  of  justice.  It  has  not 
ap|)eare<l  that  yoti  an*  to  be  j)aid  twice  as  nuich  for  sending  me  to 
jail,  a»  for  ac^iuitting  me  of  the  charge.     I  doubt  that  you  have  yet 


SCHEME   OF   DEFENCE.  9 

'advised  my  counsel  to  make  no  defence,  "  put  no  obstructions  in  the 
way  "  of  my  being  sent  to  jail  as  "  he  probably  will." 

Gentlemen,  a  United  States  Commissioner  has  his  place  on  con- 
dition that  he  performs  such  services  as  his  masters  "  reciuire."  These 
United  States  Judges  have  their  scat  in  consequence  of  services  ren- 
dered to  the  ruling  power  of  America,  and  for  others  of  like  sort  yet 
to  be  paid  to  the  stealers  of  men.  Other  rewards  shine  before  them 
alluring  to  new  service,  —  additional  salary  can  pay  additional  alac- 
rity. But  you,  Gentlemen,  are  not  office-holders  nor  seekers  of  office, 
not  hoping  to  gain  money,  or  power,  or  honor,  by  any  wickedness. 
You  are  to  represent  the  unsophisticated  Conscience  of  the  People, — 
not  the  slave-power,  but  the  power  of  Freedom. 

It  is  to  you  I  shall  address  my  defence !  My  defence  ?  No,  Gen- 
tlemen, YOUR  defence,  the  defence  of  your  own  Rights,  inherent  in 
your  national  Institutions  as  Americans,  ay,  in  your  Nature  as  Men. 
It  is  a  singular  good  fortune  that  to  you,  as  judges,  I  am  pleading 
your  own  cause.  You  have  more  interest  at  stake  than  I.  For  at 
death  my  name  will  perish,  while  children  and  children's  children,  I 
trust,  will  gently  mingle  your  memories  in  that  fair  tide  of  human 
life  which  never  ends. 

So  much  have  I  said  by  way  of  introduction,  treating  only  of  the 
accidents  pertaining  to  this  case.  I  will  now  come  to  the  Primary 
Qualities  and  Substance  thereof. 

This  is  a  Political  Trial.  In  form^  I  am  charged  with  violating 
a  certain  statute  never  before  applied  to  actions  like  mine ;  never 
meant  to  apply  to  such  actions ;  not  legally  capable  of  such  applica- 
tion. But  in  fact,  my  offence  is  very  different  from  what  the  indict- 
ment attempts  to  set  forth.  The  judges  know  this  ;  the  attorney 
knows  it,  and  "  never  expected  to  procure  a  conviction."  It  is  your 
cause,  even  more  than  mine,  that  I  plead.  So  it  concerns  you  to 
understand  the  whole  matter  thoroughly,  that  you  may  justly  judge 
our  common  cause.  To  make  the  whole  case  clear,  I  will  IcduI  it 
out  into  four  great  parcels  of  matter,  which  your  mind  can  command 
at  once,  and  then  come  to  the  details  of  each,  ploughing  it  all  over 
before  your  face,  furrow  by  furrow.     I  shall  speak, 

I.  Of  the  State  of  Affairs  in  America  which  has  led  to  this  prose- 
cution,—  the  Encroachments  of  a  Power  hostile  to  Democratic  Insti- 
tutions. 

II.  Of  the  Mode  of  Operation  pursued  by  this  Encroaching  Power, 
in  other  times  and  in  our  own, —  of  Systematic  Corruption  of  the 
Judiciary. 

III.  Of  the  great  Safeguard  which  has  been  found  serviceable  in 
protecting  Democratic  Institvitions  and  the  Rights  of  Man  they  are 
designed  to  defend.  —  of  the  Trial  by  Jury. 


lO  ENCROACHMENT   OF   THE   SLAVE-POWER. 

IV.  Of  the  Circumstances  of  this  special  case,  United  States  ver- 
sus Theodore  Parker. 

I  shall  speak  of  each  in  its  order,  and  begin  at  the  head. 


I.  Of  the  state  of  affairs  in  America,  which  has  led  to  this 
PROSECUTION — The  Encroachments  of  a  power  hostile  to  Demo- 
CK4.TIC  Institutions. 

In  a  republic  where  all  emanates  from  the  People,  political  institu- 
tions must  have  a  Basis  of  Idea  in  the  Nation's  Thought,  before  they 
can  acquire  a  Basis  of  Fact  in  the  Force  of  the  Nation.  Now  in 
America  there  are  two  diverse  Ideas  recognized  as  principles  of 
Action  —  the  Idea  of  Freedom  and  the  Idea  of  Slavery.  Allow  me 
to  read  my  analysis  and  description  of  each. 

The  Idea  of  Freedom  first  got  a  national  expression  on  the  Fourth  of  July,  1776. 
Here  it  is.     I  put  it  in  a  philosophic  form.     There  are  five  points  to  it. 

First,  All  men  are  endowed  by  their  Creator  with  certain  natural  rights,  amongst 
■which  is  the  right  to  life,  liberty,  and  the  pursuit  of  happiness. 

Second,  These  rights  are  unalienable ;  they  can  be  alienated  only  by  the  possessor 
thereof;  the  father  cannot  alienate  them  for  the  son,  nor  the  son  for  the  father  ;  nor 
the  husband  for  the  wife,  nor  the  wife  for  the  husband  ;  nor  the  strong  for  the  weak, 
nor  the  weak  for  the  strong ;  nor  the  few  for  the  many,  nor  the  many  for  the  few ; 
and  so  on. 

Third,  In  respect  to  these,  all  men  are  equal ;  the  rich  man  has  not  more,  and  the 
poor  less;  the  strong  man  has  not  more,  and  the  weak  man  less:  —  all  are  exactly 
equal  in  these  rights,  however  unequal  in  their  powers.    " 

Fourth,  It  is  the  function  of  government  to  secure  these  natural,  unalienable,  and 
equal  rights  to  every  man. 

Fifth,  Government  derives  all  its  divine  right  from  its  conformity  with  these  ideas, 
all  its  human  sanction  from  the  consent  of  the  governed. 

That  is  the  Idea  of  Freedom.  I  used  to  call  it  "  the  American  Idea; "  that  was  when 
I  was  younger  than  I  am  to-day.  It  is  derived  from  human  nature;  it  rests  on  the 
jmrnutabU;  I^aws  of  God ;  it  is  part  of  the  natural  religion  of  mankind.  It  demands  a 
government  after  natural  Justice,  which  is  the  point  common  between  the  conscience 
of  (Jofl  anrl  the  conscience  of  mankind;  it  is  the  point  common  also  between  the 
intcrc'Mt)  of  one  man  and  of  all  men. 

Now  thi-s  government,  just  in  its  substance,  in  its  form  must  be  democratic  :  that  is 
to  Bay,  the  govenimetit  of  all,  by  all,  and  for  all.  You  sec  Avhat  consequences  must 
follow  from  hucIi  an  iijca,  and  the  attempt  to  reiinact  the  Law  of  God  into  political  in- 
Ktitiition.M.  TIktc  will  follow  the  freedom  of  the  people,  respect  for  every  natural  right 
of  all  ini-n,  lli«»  rights  of  their  body  and  of  their  spirit  —  the  rights  of  mind  and  con- 
wi«'n<T,  ht-art  anrl  houI.  There  must  lie  some  restraint  —  as  of  children  by  their 
imrenid,  iih  of  bad  men  by  good  njin  ;  Imt  it  will  bo  restraint  for  the  joint  good  of  all 
pnrii*'*  i-onrcnu'd  ;  not  restraint  li.r  tli(!  exclusive  benefit  of  the  restrainer.  The  ultl- 
nwite  ronM-(|ii(!nrt>  of  this  will  be  the  material  and  spiritual  welfare  of  all  —  riches, 
C0fiiff>rt,  noble  ninnhood,  all  dcsiralilc  things. 

That  i»  the  Idea  of  Frecd<jni.     Ii  appears  in  the  Declaration  of  Independence;  It 


FREEDOM   AND    SLAVERY.  11 

reappears  in  the  Preamble  to  tlic  American  Constitution,  wliich  aims  "  to  establish 
Justice,  insure  domestic  tranquillity,  provide  for  the  common  defence,  promote  the 
general  "welfare,  and  secure  the  blessings  of  Liberty."  Tliat  is  a  religious  idea;  and 
when  men  j)ray  for  the  "  Reign  of  Justice"  and  the  "  Kingdom  of  Heaven"  to  come 
on  earth  politically,  I  su])pose  they  mean  that  there  may  be  a  Commonwealth  -where 
every  man  has  his  natural  rights  of  mind,  body,  and  estate. 

Next  is  the  Idea  of  Slavery.  Here  it  is.  I  put  it  also  in  a  philosophic  form.  There 
are  three  points  which  I  make. 

First,  There  are  no  natural,  unalienable,  and  equal  rights,  wherewith  men  are  en- 
dowed by  their  Creator ;  no  natural,  unalienable,  and  ecjual  right  to  life,  liberty,  and 
the  pursuit  of  happjness. 

Second,  There  is  a  great  diversity  of  powers,  and  in  virtue  thereof  the  strong 
man  may  rule  and  oppress,  enslave  and  ruin  the  weak,  for  his  intercibt  and  against 
theirs. 

Third,  There  is  no  natural  law  of  God  to  forbid  the  strong  to  oppress  the  weak,  and 
enslave  and  ruin  the  weak. 

That  is  the  Idea  of  Slavery.  It  has  never  got  a  national  expression  in  America ;  it 
has  never  been  laid  down  as  a  Principle  in  any  act  of  the  American  people,  nor  in  any 
single  State,  so  far  as  I  know.  All  profess  the  opposite;  but  it  is  involved  in  the 
Measures  of  both  State  and  Nation.  This  Idea  is  founded  in  the  selfishness  of  man ; 
it  is  atheistic. 

The  idea  must  lead  to  a  corresponding  government;  that  will  be  unjust  in  its  sub- 
stance, —  for  it  will  depend  not  on  natural  right,  but  on  personal  force ;  not  on  the 
Constitution  of  the  Universe,  but  on  the  compact  of  men.  It  is  the  abnegation  of  God 
in  the  universe  and  of  conscience  in  man.  Its  form  will  be  despotism,  —  the  govern- 
ment of  all,  by  a  part,  for  the  sake  of  a  part.  It  may  be  a  single-headed  despotism, 
or  a  despotism  of  many  heads ;  but  whether  a  Cyclops  or  a  Hydra,  it  is  alike  "  the 
abomination  which  maketh  desolate."  Its  ultimate  consequence  is  jilaiu  to  foresee  — 
poverty  to  a  nation,  misery,  ruin. 

These  two  Ideas  are  now  fairly  on  foot.  They  are  hostile ;  they  are  both  mutually 
invasive  and  destructive.  They  are  in  exact  opposition  to  each  other,  and  the  nation 
which  embodies  these  two  is  not  a  figure  of  equilibrium.  As  both  are  active  forces  in 
the  minds  of  men,  and  as  each  idea  tends  to  become  a  fact  —  a  universal  and  exclusive 
fact,  —  as  men  with  these  ideas  organize  into  parties  as  a  means  to  make  their  idea 
into  a  fact,  ^-  it  follows  that  there  must  not  only  be  strife  amongst  philosophical  men 
about  these  antagonistic  Principles  and  Ideas,  but  a  strife  of  practical  men  about  cor- 
responding Facts  and  JMeasures.  So  the  quarrel,  if  not  otherwise  ended,  will  pass 
from  words  to  what  seems  more  serious ;  and  one  will  overcome  the  other. 

So  long  as  these  two  Ideas  exist  in  the  nation  as  two  political  forces,  there  is  no 
national  unity  of  Idea,  of  course  no  unity  of  action.  For  there  is  no  centre  of  gravity 
common  to  Freedom  and  Slavery.  They  will  not  compose  an  equilibrious  figure. 
You  may  cry  "Peace!  Peace  !"  but  so  long  as  these  two  antagonistic  Ideas  remain, 
each  seeking  to  organize  itself  and  get  exclusive  power,  there  is  no  peace  ;  there  can 
be  none. 

The  question  before  the  nation  to-day  is,  Which  shall  prevail  —  the  Idea  and  Fact 
of  Freedom,  or  the  Idea  and  the  Fact  of  Slavery ;  Freedom,  exclusive  and  universal, 
or  Slavery,  exclusive  and  universal  ?  The  question  is  not  merely.  Shall  the  African 
be  bond  or  free  ?  but,  Shall  America  be  a  Democracy  or  a  Despotism  ?  For  nothing 
is  so  remorseless  as  an  idea,  and  no  logic  is  so  strong  as  the  historical  development  of  a 
national  idea  by  millions  of  men.  A  measure  is  nothing  without  its  Principle.  The 
Idea  which  allows  Slavery  in  South  Carolina  will  estabUsh  it  also  in  New  England. 


12  ENCROACHMENT   OF   THE   SLAVE-POWER. 

The  bondase  of  a  black  man  in  Alexandria  imperils  every  white  woman's  daughter  in 
Boston.  You  cannot  escape  the  consequences  of  a  first  Principle  more  than  you  can 
"take  the  leap  of  Xiajjara  and  stop  when  half-way  down."  The  Principle  which 
reco<^nizes  Slavery  in  the  Constitution  of  the  United  States  would  make  all  America  a 
Despotism,  while  the  Principle  which  made  John  Qiiincy  Adams  a  free  man  would 
extirpate  Slavery  from  Louisiana  and  Texas.  It  is  plain  America  cannot  long  hold 
these  two  contradictions  in  the  national  consciousness.     Equilibrium  must  come.^ 

These  two  ideas  are  represented  by  two  parties  which  aim  at  the 
ultimate  organization  of  their  respective  doctrines,  the  party  indicat- 
ing- the  special  tendency  towards  Democracy  or  Despotism.  The 
Party  of  Freedom  is  not  yet  well  organized  ;  that  of  Slavery  is  in 
admirable  order  and  discipline.  These  two  parties  are  continually  at 
war  attended  with  various  success. 

1.  In  the  individual  States  of  the  North,  since  the  Revolution,  t^e 
Party  of  Freedom  has  gained  some  great  victories;  it  has  abolished 
Personal  Slavery  in  every  northern  State,  and  on  a  deep-laid  founda- 
tion has  built  up  Democratic  Institutions  with  well  proportioned 
beauty.  The  Idea  of  Freedom,  so  genial  to  the  Anglo-Saxon,  so 
welcome  to  all  of  Puritanic  birth  and  breeding,  has  taken  deep  root 
in  the  consciousness  of  the  great  mass  of  the  People  at  the  North.  In 
the  severe  simplicity  of  national  deduction  they  will  carry  it  to 
logical  conclusions  not  yet  foreseen  by  human  providence.  The  free 
States  are  progressively  democratic. 

But  in  all  the  Northern  States,  and  more  especially  in  its  cities, — 
and  here  chiefly  among  the  men  of  exclusive  intellectual  culture  and 
the  votaries  of  commerce  and  its  riches,  —  there  are  exceptional  men 
who  embrace  the  Idea  of  Slavery  and  belong  to  its  Party.  They 
know  no  law  higher  than  the  transient  interest  of  their  politics  or  their 
commerce,  their  ease  or  ambition.  They  may  not  theoretically  hate 
the  People,  but  tiiey  so  love  their  own  money,  their  own  ease  or 
pleasure,  that  practically  they  oppose  what  promotes  the  welfare  of 
mankind,  and  seek  their  own  personal  advancement  to  the  injury  of 
the  human  race.  These  are  Northern  men  with  Southern  "  Prin- 
ciples." They  have  their  Journals  too  well  known  in  Boston  to 
need  mention  here 

2.  In  the  individual  States  of  the  South,  the  Idea  and  Party  of 
SIav»Ty  ha.s  also  gained  great  victories  and  been  uniformly  success- 
ful ;  it  ha»  c.xtendi-d  and  strengthened  personal  slavery,  which  has 
now  u  firnuT  hold  in  llu^  minds  of  the  controlling  classes  of  Southern 
men,  —  the  rich  and  "  cducalcd," — than  in  177G,  or  ever  before.  The 
Scjuthcrn  States  are  progn-ssively  despotic. 

Still,  in  all  the  Sonliicrn   Slates  there  are  exceptional  men,  hostile 

1  R«<c  tlii«  •tnifniciit  in  Mr.  I'lirkcr's  AiMiti<iii:il  J>iiocclics,  Addresses,  ;vnd  Occasional  Sermons. 
DoftUm,  1806,  vol.  ii.  p.  200,  el  ttq. 


THE   NORTH  AND   SOUTE.  13 

to  slavery,  —  the  intelligent  and  religious  from  conviction,  others  from 
mere  personal  interest.  These  are  Southern  men  with  Nortiiern 
Principles.  They  are  much  oppressed  at  home  —  kept  from  political 
advancement  or  social  respectability,  as  much  as  democrats  would  be 
at  Rome  or  Naples,  —  have  no  journals  and  little  influence. 

3.  In  the  Federal  Government,  the  warfare  goes  on,  each  party 
seeking  for  mastery  over  the  whole  United  States  —  the  contest  is 
earned  on  in  Congress,  in  all  the  local  legislatures ;  newspapers, 
speeches,  even  sermons,  resound  with  the  din  of  battle.  See  what 
forces  contend  and  with  what  results. 

The  nation  lives  by  its  productive  industry,  whereof  thqre  are  these 
five  chief  departments  : — Hunting  and  Fishing,  the  appropriation  of 
the  spontaneous  live  products  of  the  land  and  sea ;  Agriculture,  the 
use  of  the  productive  forces  of  the  earth's  surface  ;  Mining,  the  appro- 
priation of  the  metallic  products  of  her  bosom ;  Manufactures,  the 
application  of  toil  and  thought  to  the  products  of  Hunting  and  Fish- 
ing, Mining  and  Agriculture ;  Commerce,  the  exchange  of  value, 
distribution  of  the  products  of  these  four  departments  of  industry, 
directly  productive. 

Hunting  and  Fishing,  Mining,  Manufactures,  Commerce,  are  mainly 
in  the  hands  of  Northern  men — the  South  is  almost  wholly  Agricul- 
tural. Her  wealth  consists  of  land  and  slaves.  In  1850  the  fifteen 
slave  States  had  not  fourteen  hundred  millions  of  other  property.  In 
the  South  property,  with  its  consequent  influence,  is  in  few  hands  — 
in  the  North  it  is  wide  spread. 

Now  the  few  controlling  men  of  the  South,  the  holders  of  land  and 
slaves,  have  Unity  of  pecuniary  Interest  —  the  support  of  Slavery  as 
a  local  measure,  —  for  it  is  the  source  of  their  material  wealth,  and 
also  a  consequent  Unity  of  political  Idea,  the  support  of  Slavery  as  a 
universal  Principle,  for  it  is  the  source  likewise  of  their  political 
power.  Accordingly  the  South  presents  against  the  North  an  even 
and  well-disciplined  front  of  veteran  soldiers,  is  always  hostile  to 
Freedom,  and  as  her  "  best  educated "  men  devote  much  time  to 
politics,  making  it  the  profession  of  their  whole  lives,  it  is  plain  they 
become  fomiidable  antagonists. 

But  the  North  has  a  great  variety  of  conflicting  interests,  a  great 
amount  of  intellectual  activity,  where  education  and  its  consequent 
habits  of  reading  and  thinking  are  so  wide  spread,  and  therefore  a 
great  variety  of  opinion.  Accordingly  there  is  not  the  same  Unity  of 
pecuniary  Interest  and  of  political  Idea,  which  distinguishes  the 
South.  Besides,  in  the  North  the  ablest  and  best  educated  men  do 
not  devote  their  time  to  the  thankless  and  stormy  calling  of  politics  ; 
Virginia  cares  for  nothing  but  Negroes  and  Politics,  her  loins  and 
her  brains  gender  but  this  twofold  product:  Massachusetts  and  New 

2 


14  ENCROACHMENT   OF  THE   SLAVE-POWER. 

York  care  for  much  beside.  So  the  North  does  not  present  against 
the  South  an  even  and  well-disciplined  front  of  veteran  soldiers,  but 
a  ragged,  discordant  line  of  raw  recruits,  enlisting  for  a  short  time 
with  some  special  or  even  personal  local  interest  to  serve. 

What  makes  the  matter  yet  worse  for  us.  Gentlemen  of  the  Jury, 
is  this :  While  the  great  mass  of  the  people  at  the  North,  engrossed 
in  direct  productive  industry,  are  really  hostile  to  slavery,  those  ab- 
sorbed in  the  large  operations  of  commerce,  taken  as  a  whole  class, 
feel  little  interest  in  the  Idea  of  Freedom  ;  nay,  they  are  positively 
opposed  to  it.  Before  the  African  Slave-trade  was  treated  like  other 
kindred  forms  of  piracy,  as  a  capital  crime,  they  had  their  ships  in 
that  felonious  traffic  ;  and  now  their  vessels  engage  in  the  American 
Slave-trade  and  their  hand  still  deals  in  the  bodies  of  their  fellow 
men.  In  all  the  great  commercial  cities,  like  Philadelphia,  New 
York  and  Boston  these  men  prevail,  and  are  the  "eminent  citi- 
zens," overslaughing  the  press,  the  pulpit,  the  bar,  and  the  court, 
with  the  Ideas  of  their  lower  law,  and  sweeping  along  all  metropol- 
itan and  suburban  fashion  and  respectability  in  their  slimy  flood. 
Hence  the  great  cities  of  the  North,  governed  by  the  low  maxims  of 
this  class,  have  become  the  asylum  of  Northern  men  with  Southern 
"  Principles,"  and  so  the  strong-hold  of  Slavery.  And  hitherto  these 
great  cities  have  controlled  the  politics  of  the  Northern  States,  crowd- 
ing the  Apostles  of  Freedom  out  from  the  national  board,  and  helping 
the  party  of  slavery  to  triumph  in  all  great  battles. 

Tiius  aided,  for  many  years  the  South  has  always  elected  her 
candidate  for  the  Presidency  by  the  vote  of  the  people.  But  the 
American  Executive  is  twofold,  —  part  Presidential,  part  Senatorial. 
Sometimes  these  two  Executives  are  concordant,  sometimes  discord- 
ant. The  Senatorial  Executive  has  always  carried  the  day  against 
the  loss  permanent  Presidential  power,  except  in  the  solitary  case 
wlicre  General  Jackson's  unconquerable  will  and  matchless  popular- 
ity enabled  him  to  master  the  senate  itself,  who  "  registered  "  his  de- 
crees, or  "  cxj)ungcd  "  their  own  censure,  just  as  the  iron  ruler  gave 
orders. 

Now  by  means  of  the  control  which  the  Northern  Cities  have  over 
the  Northern  States,  and  such  Commercial  Men  over  those  cities,  it 
has  come  to  pass  that  not  only  the  Presidential,  but  also  the  Sena- 
torial Executive,  has  long  been  hostile  to  the  Idea  of  Freedom. 

Gentlemen  of  the  Jury,  the  direct  consequence  is  obvious, — the 
Party  of  Slavery  has  long  Inirn  tlie  conqueror  in  the  field  of  Federal 
politicH.  In  the  numerous  and  great  conflicts  between  the  two, 
Frerdom  haw  |)r('vaih'd  against  Slavery  only  twice  since  the  close  of 
the  Revolutionary  War, —  in  prohibiting  involuntary  servitude  in  the 
North-west  Territory    in    17H7,  and  in  the  abolition  of  the  African 


AIM    OF  THE   SLAVE-POWER.  15 

Slave-trade  in  1808.  Her  last  triumph  was  forty-seven  years  ago, — 
nay,  even  that  victory  was  really  achieved  twenty  years  before  at 
the  adoption  of  the  constitution.  In  this  warfare  we  have  not  gained 
a  battle  for  freedom  since  1788 ! 

For  a  time  it  seemed  doubtful  which  would  triumph,  though  Sla- 
very gained  Kentucky  and  Tennessee,  and  Louisiana  was  purchased 
as  slave  soil  in  1803.  But  in  1820  slavery  became  the  obvious  and 
acknowledged  master  in  the  Federal  Territory,  marched  victorious 
over  the  Mississippi,  planted  itself  in  Missouri,  and  has  subse- 
quently taken  possession  of  Mississippi,  Alabama  and  Arkansas,  all 
slave  States;  has  purchased  Florida;  "reannexed"  Texas;  con- 
quered Utah,  New  Mexico  and  California,  all  slave  soil';  and  from 
Freedom  and  the  North  has  just  now  reconquered  Kanzas  and 
Nebraska.  Ever  since  the  Missouri  Compromise  in  1820  Slavery  has 
been  really  the  master,  obviously  so  since  the  annexation  of  Texas 
in  1845.  The  slave-power  appoints  all  the  great  national  officers, 
executive,  diplomatic,  judicial,  naval  and  military,  —  it  controls  the 
legislative  departments.  Look  at  this  Honorable  Court,  Gentlemen, 
and  recognize  its  power ! 

The  idea  of  Slavery  must  be  carried  out  to  its  logical  consequence, 
so  our  masters  now  meditate  two  series  of  Measures,  both  necessary 
to  the  development  of  Slavery  as  a  Principle. 

(I.)  African  Slavery  is  to  be  declared  a  Federal  Institution, 
national  and  sectional,  and  so  extended  into  all  the  Territories  of  the 
United  States.  New  soil  is  to  be  bought  or  plundered  from  Hayti, 
Spain,  Mexico,  South  America  "  and  the  rest  of  mankind,"  that 
slavery  may  be  planted  there ;  that  is  the  purpose  of  all  the  Official 
Fillibustering  of  the  Government,  and  the  Extra-official  Fillibuster- 
ing  which  it  starts,  or  allows ;  Quitman  "Enterprises,"  Kinney  "Ex- 
peditions," Black  Warrior  and  El  Dorado  "  difficulties,"  all  point  to 
this  ;  the  "  Ostend  Conference  "  is  a  step  in  that  direction ;  Slavery  is 
to  be  restored  to  the  so  called  "  Free  States,"  reestablished  in  all 
the  North.  That  is  the  design  of  the  fugitive  slave  bill  in  1850,  and 
the  kidnapping  of  northern  men  consequent  thereon  for  the  last  five 
years ;  of  President  Pierce's  inaugural  declarations  in  behalf  of  slavery 
in  1853 ;  of  Mr.  Toombs's  threat  in  1854,  that  "  soon  the  master  with 
his  slaves  will  sit  down  at  the  foot  of  Bunker  Hill  Monument;" 
of  Mr.  Toucey's  Bill  in  1855,  providing  that  when  a  kidnapper  vio- 
lates the  local  laws  of  any  State,  he  shall  be  tried  by  the  fugitive  slave 
bill  court.  Then  the  African  Slave-trade  is  to  be  restored  by  federal 
enactments,  or  judicial  decisions  of  the  "  Supreme  Court  of  the 
United  States."  All  these  steps  belong  to  Measure  number  One. 
The  Supreme  Court  is  ready  to  execute  the  commands  of  its  lord. 
Soon  you  will  see  more  "  decisions  "  adverse  to  humanity. 


16  ENCROACHMENT   OF   THE    SLAVE-POWER. 

(II.)  The  next  movement  is  progressively  to  weaken  and  ulti- 
mately to  destroy  the  Democratic  Institutions  of  the  North,  —  yes, 
also  of  the  South.  This  design  is  indicated  and  sustained  by  some 
of  the  measures  already  mentioned  as  connected  with  the  first  pur- 
pose. 

To  this  point  tend  the  words  of  President  Pierce  addressed  to  the 
soldiers  of  1812  on  the  8th  of  January  1855,  in  which  he  speaks  of 
such  as  "disseminate  political  heresies,"  that  is,  the  Idea  of  Free- 
dom ;  "  revile  the  government,"  —  expose  its  hostility  against  the  un- 
alienable Rights  of  man;  "deride  our  institutions," — to  wit,  the 
patriarchal  institution  of  Slavery;  "  sow  political  dissensions,"  —  ad- 
vise men  not  to  vote  for  corrupt  tools  of  the  government ;  "  set  at 
defiance  the  laws  of  the  land,"  —  meaning  the  fugitive  slave  bill 
which  commands  kidnapping. 

There  belong  the  attempts  of  the  Federal  courts  to  enlarge  their 
jurisdiction  at  the  expense  of  State  Rights;  the  cry,  "Union  first 
and  Liberty  afterwards;"  the  shout  "No  higher  law,"  "Religion 
nothing  to  do  with  Politics." 

Thence  come  the  attacks  made  on  the  freedom  of  the  pulpit,  of  the 
press,  and  all  freedom  of  speech.  The  Individual  State  which  pre- 
serves freedom  must  be  put  down,  —  the  individual  person  who  pro- 
tests against  it  must  be  silenced.  No  man  must  hold  a  federal  office, 
—  executive,  diplomatic,  judicial,  or  "ministerial," — unless  he  has  so 
far  conquered  his  "prejudices"  in  favor  of  the  natural  Rights  of 
man  tha^lie  is  ready  to  enslave  a  brother  with  alacrity.  All  these 
steps  belong  to  Measure  number  Two. 

This  latter  Measure  advances  to  its  execution,  realizing  the  Idea 
of  Slavery,  with  subtle  steps,  yet  creeps  on  rapid-moving  feet.  See 
how  it  has  gained  ground  latterly.  Obviously  the  fugitive  slave  bill 
struck  only  at  the  natural  Rights  of  Colored  men  —  as  valuable  as 
those  of  white  men,  but  the  colored  are  few  and  the  white  many, — 
the  experiment  must  be  made  on  the  feebler  body.  But  this  despotism 
cannot  enslave  a  black  girl  without  thereby  putting  in  peril  the  liberty 
of  every  white  man.  At  first  our  masters  only  asked  of  Boston  a 
little  piece  of  chain,  but  just  long  enough  to  shackle  the  virtuous 
hands  of  Ellen  Craft,  a  wife  and  mother,  whom  her  Georgian 
"  owner "  wished  to  sell  as  a  harlot  at  New  Orleans !  A  meeting  was 
HunnnoiK'd  at  Faneuil  Hall,  and  Boston  answered,  "  Yes,  here  is 
the  chain.  Let  the  woman-hunter  capture  Ellen  Craft,  make  her  a 
ProMtilute  at  New  Orleans.  She  is  a  virtuous  wife  and  mother, — 
hut  MO  iiiatlcr.  Slavery  is  king  and  commands  it.  Let  the  'owner' 
have  his  chain." 

'J'li<T«r  in  no  escaping  llic  conscciuoncc^  of  a  first  Principle.  Soon 
that  little  chain  Icnglhened  itself  out,  and  coiled  itself  all  round  the 


AIM    OF   TUE   SLAVE-POWER.  17 

court  house,  and  how  greedily  your  judges  stooped  to  go  under! 
This  Anaconda  of  the  Dismal  Swamp  wound  its  constricting  twists 
about  the  neck  of  all  your  courts,  and  the  Judges  turned  black  in  the 
face,  and  when  questioned  of  law,  they  could  not  pronounce  "  Habeas 
Corpus,"  "  Trial  by  Jury,"  nor  utter  a  syllable  for  the  Bible  or  the 
Massachusetts  Constitution,  but  only  wheeze  and  gurgle  and  squeak 
and  gibber  out  their  defences  of  Slavery!  No,  Boston  could  not 
bewray  a  woman  wandering  towards  freedom,  without  chaining  the 
court  house  and  its  judges,  putting  the  town  in  a  state  of  siege,  —  in- 
solent soldiers  striking  at  the  people's  neck.  Now  the  attempt  is 
making  by  this  Honorable  Court  to  put  the  same  chain  round  Fan- 
euil  Hall,  so  that  the  old  Cradle  of  Liberty  shall  no  more  rock  to 
manhood  the  noble  sons  of  freedom,  but  only  serve  as  a  nest  that  the 
spawn  of  Bondage  may  hibernate  therein. 

I  am  on  trial  because  I  hate  Slavery,  because  I  love  freedom  for 
the  black  man,  for  the  white  man,  and  for  all  the  human  Race.  I 
am  not  arraigned  because  I  have  violated  the  statute  on  which  the 
indictment  is  framed  —  no  child  could  think  it — but  because  I  am 
an  advocate  of  Freedom,  because  my  Word,  my  Thoughts,  my 
Feelings,  my  Actions,  nay,  all  my  Life,  my  very  Existence  itself,  are 
a  protest  against  Slavery.  Despotism  cannot  happily  advance  unless 
I  am  silenced.  It  is  very  clear  logic  which  indicts  me.  Private  per- 
sonal malice,  deep,  long  cherished,  rancorous,  has  doubtless  jagged 
and  notched  and  poisoned  too  the  public  sword  which  smites  at  my 
neck.  Still  it  is  the  public  sword  of  Slavery  which  is  wielded  against 
me.  Against  me  ?  Against  you  quite  as  much  —  against  your  chil- 
dren. For  as  Boston  could  not  venture  to  kidnap  a  negro  woman, 
without  bringing  down  that  avalanche  of  consequences  connected 
with  the  Principle  of  Slavery, — without  chains  on  her  Judges,  false- 
hood in  her  officers,  blood  in  her  courts,  and  drunken  soldiers  in  her 
streets,  and  hypocrisy  in  her  man-hunting  ministers,  —  no  more  can 
she  put  me  to  silence  alone.  The  thread  which  is  to  sew  my  lips 
together,  will  make  your  mouths  but  a  silent  and  ugly  seam  in  your 
faces.  Slavery  is  Plaintiff  in  this  case ;  Freedom  Defendant.  Be- 
fore you  as  Judges,  I  plead  your  own  cause  —  for  you  as  defendant. 
I  will  not  insult  you  by  the  belief  or  the  fear  that  you  can  do  other 
than  right,  in  a  matter  where  the  law  is  so  plain,  and  the  Justice 
clear  as  noonday  light.  But  should  you  decide  as  the  wicked  wish, 
as  the  court  longs  to  instruct  you,  you  doom  your  mouths  to  silence ; 
you  bow  your  manly  faces  to  the  ground,  destine  your  memories  to 
shame,  and  your  children  to  bondage  worse  than  negro  slavery. 

Such,  Gentlemen  of  the  Jury,  is  the  state  of  affairs  leading  to  this 
Prosecution  —  such  the  past,  present,  and  prospective  Encroachments 

2* 


18  CORRUPTION   OF  THE  JUDICIARY. 

of  a  Power  hostile  to  Democratic  Institutions  and  the  unalienable 
Rio-hts  they  were  designed  to  protect.  Such  also  are  the  two  Meas- 
ures now  in  contemplation,  —  the  Extension  of  African  Bondage, 
and  the  Destruction  of  American  Freedom. 


11.    Look  xext  at  the  Mode  of  Operation  hitherto  pursued  by 
THIS  Encroaching  Power,  in  other  times  and  nations,  and  in 

OUR   OWN,    systematic    CORRUPTION    OF   THE  JUDICIARY. 

Here  I  shall  show  the  process  by  which  that  Principle  of  Slavery 
becomes  a  Measure  of  political  ruin  to  the  People. 

In  substance  Despotism  is  always  the  same,  Spanish  or  Caro- 
linian, but  the  form  varies  to  suit  the  ethnologic  nature  and  histori- 
cal customs  of  different  people.  I  shall  mention  two  forms  —  one  to 
illustrate,  the  other  to  warn. 

(I.)  The  open  Assumption  of  Power  by  military  violence.  This 
method  is  followed  in  countries  where  love  of  Individual  Liberty  is 
not  much  developed  in  the  consciousness  of  the  people,  and  where 
democratic  institutions  are  not  fixed  facts  in  their  history ;  where  the 
nation  is  not  accustomed  to  local  self-government,  but  wonted  to  a 
strong  central  power  directed  by  a  single  will.  This  form  prevails  in 
Russia,  Turkey,  and  among  all  the  Romanic  tribes  in  Europe,  and 
their  descendants  in  America.  Military  usurpation,  military  rule  is 
indigenous  in  France,  —  where  two  Napoleons  succeed  thereby,  —  in 
Italy,  in  Spain,  and  most  eminently  in  Spanish  America.  But  no 
people  of  the  Teutonic  family  for  any  length  of  time  ever  tolerated  a 
usurping  soldier  at  the  head  of  affairs,  or  submitted  to  martial  arbi- 
rary  rule,  or  military  violence  in  the  chief  magistrate.  It  is  against 
our  habit  and  disposition. 

Neither  Cromwell  nor  William  of  Orange  could  do  with  the  Anglo- 
Saxon  what  it  would  have  been  impossible  not  to  do  with  Spaniards 
or  Italians.  Even  warlike  Swiss — Teutonic  tribes  —  will  have  a 
government  with  due  process  of  law,  not  by  the  abrupt  violence  of 
the  soldier.  Wasliingtoii  could  not  have  established  a  military  mon- 
archy in  America  had  he  been  so  wickedly  disposed.  Even  William 
the  Conqueror  must  rule  the  Saxons  by  Saxon  law. 

(11.)  The  corruption  of  the  acknowledged  safeguards  of  public 
security.  'J'his  is  attempted  in  nations  who  have  a  well-known  love 
f)f  individual  lil)erty,  and  institutional  defences  thereof,  the  habit  of 
Local  Self-government  by  Democratic  Law-making  and  Law-admin- 
istering. l*'or  example,  this  experiment  has  been  repeatedly  made  in 
England.      'I'Ik-  iiioiiarch  seeking  lo  destroy  the  liberty  of  the  people, 


JUDGES   UNDER  JAMES   I.  19 

accomplishes  his  violent  measure  by  the  forms  of  peaceful  law,  by- 
getting  the  judicial  class  of  men  on  the  side  of  despotism.  Then  all 
the  wickedness  can  be  done  in  the  name,  with  the  forms,  and  by  "due 
process"  of  law,  by  regular  officers  thereof — done  solemnly  with  the 
assistance  of  slow  and  public  deliberation. 

Gentlemen  of  the  Jury,  this  is  a  matter  of  such  importance  to  the 
People  of  America  just  now,  that  I  must  beg  you  to  bear  with  me 
while  I  explain  this  subtle  operation.  I  will  select  examples  from  the 
history  of  England  which  are  easy  to  understand,  because  her  blood 
is  kindred  to  our  own,  and  the  institutions  of  the  two  countries  are 
related  as  parent  and  child.  And  besides,  her  past  history  affords 
alike  warning  and  guidance  in  our  present  peril. 

(1.)  The  first  step  in  this  process  of  political  iniquity  is,  to  appoint 
men  for  judges  and  other  officers  of  the  court,  who  know  no  law 
higher  than  the  selfish  will  of  the  hand  that  feeds  them,  mere  crea- 
tures of  the  rest. 

I  will  select  instances  of  this  from  the  reign  of  the  Stuart  kings 
and  one  of  their  successors,  from  a  period  full  of  melancholy  warning 
to  America. 

I  will  begin  with  James  I.  (1603-1625),  the  first  King  of  New 
England.  At  his  very  accession  he  had  high  notions  of  his  royal 
Prerogative,  and  maintained  that  all  the  privileges  of  the  House  of 
Commons  were  derived  from  his  royal  grant.  "  I  am  your  King," 
said  he,  "  I  am  placed  to  govern  you,  and  I  shall  [must]  answer  for 
your  errors."  It  was  quite  enough  to  answer  for  his  own,  —  poor 
man.  "  Let  me  make  the  Judges,"  said  he,  "  and  I  care  not  who 
makes  the  laws." 

Accordingly  for  judicial  officers  he  appointed  such  men  as  would 
execute  his  unlawful  schemes  for  the  destruction  of  public  liberty. 
To  such  considerations  was  Francis  Bacon  mainly  indebted  for  his 
elevation  from  one  legal  rank  to  another,  until  he  reached  the  seat  of 
the  Lord  Chancellor.  A  man  whom  Villers  declared,  "  of  excellent 
parts,  but  withal  of  a  base  and  ungrateful  temper,  and  an  arrant 
knave,  yet  a  fit  instrument  for  the  purposes  of  the  government." 
He  did  not  receive  his  appointment  for  that  vast,  hard-working  genius 
which  makes  his  name  the  ornament  of  many  an  age,  but  only  for 
his  sycophantic  devotion  to  the  royal  will.  Sir  Edward  Coke  was 
promoted  rapidly  enough,  whilst  wholly  subservient  to  the  despotic 
court,  but  afterwards,  though  a  miracle  of  legal  knowledge,  not 
equalled  yet  perhaps,  he  must  not  be  appointed  Lord  Chancellor  on 
account  of  "his  occasional  fits  of  independence."  Chief  Justice  Ley 
was  one  of  the  right  stamp,  but  it  was  thought  "  his  subserviency 
might  prove  more  valuable  by  retaining  him  to  preside  over  the  Court 


20  CORRUPTIOX  OF  THE  JUDICIARY. 

of  King's  Bench."  "  For  in  making  the  highest  judicial  appointments 
the  only  question  was,  what  would  suit  the  arbitrary  schemes  of  gov- 
erning the  country."  i  Hobart  had  resisted  some  illegal  monopolies 
of  the  all-powerful  Buckingham,  and  he  was  "unfit  for  promo- 
tion." 

James  thought  the  Prerogative  would  be  strengthened  by  the  ap- 
pointment of  clergymen  of  the  national  church,  perhaps  the  only  class 
of  men  not  then  getting  fired  with  love  of  liberty,  —  and  made  Wil- 
liams, Bishop  of  Lincoln,  Lord  Keeper,  a  "  man  of  rash  and  insolent, 
though  servile  temper,  and  of  selfish,  temporizing,  and  trimming  politi- 
cal conduct,"  who  at  that  time  had  never  acted  as  "a  judge  except 
at  the  Waldegrave  Petty  Sessions  in  making  an  order  of  bastardy  or 
allowing  a  rate  for  the  Parish  poor,"  and  was  "  as  ignorant  of  the 
questions  coming  before  him  as  the  door-keepers  of  his  court."  But 
he  was  subservient,  and  had  pleased  the  King  by  preaching  the  courtly 
doctrine  that  "  subjects  hold  their  liberties  and  their  property  at  the 
will  of  the  Sovereign  whom  they  are  bound  in  every  extrehiity  pas- 
sively to  obey."  ^  Men  like  Fleming  and  other  creatures  of  the 
throne,  sanctioning  the  King's  abundant  claim  to  absolute  power, 
were  sure  of  judicial  distinction;  while  it  was  only  the  force  of  public 
opinion  which  gave  the  humblest  place  of  honor  to  such  able  and 
well-studied  lawyers  as  would  respect  the  constitutional  Rights  of  the 
People  and  tlie  just  construction  of  the  laws,  and  at  all  hazards  main- 
tain their  judicial  independence.  Ecclesiastics  who  taught  that  the 
King  "  is  above  the  laws  by  his  absolute  power,"  and  "  may  quash 
any  law  passed  by  Parliament,"  were  sure  of  rapid  preferment.  Thus 
Bancroft  was  promoted ;  thus  Abbot  was  pushed  aside ;  and  for  his 
mean,  tyrannical  and  subservient  disposition  Rev.  William  Laud  was 
continually  promoted  in  expectation  of  the  services  which,  as  Arch- 
bishop, he  subsequently  performed  in  the  overthrow  of  the  Liberty  of 
the  People.  But  time  would  fail  me  to  read  over  the  long  dark  list  of 
men  whose  personal  shame  secured  them  "  official  glory." 

In  his  address  to  the  Judges  in  the  Star-Chamber  in  1616  James 
gave  them  this  charge,  "  If  there  falls  out  a  question  which  concerns 
any  Prcrogutivc  or  inysterie  of  State,  dcale  nut  icilh  it  till  you  consult 
with  the  Kin<^  or  his  Council,  or  both ;  for  they  are  Transcendent 
Matters,  and  must  not  be  slibbcrly  carried  with  over  rash  wilfullnesse." 
"  And  this  J  commend  unto  your  special  care,  as  some  of  you  of  late 
have  done;  very  much,  to  blunt  the  cdg-e  and  vaine  popular  humor  of 
some  lawijcrs  at  the  liarre^  that  think  they  are  not  eloquent  and  bold- 
spiriffd  enough,  except  they  meddle  with  the  King-^s  Prerog-ative.^^ 
"  That  which  concerns  the  mystcric  of  the   Kin<jfs  Power  is  not  lawful 

'  2  Canij.VIl,  372,  371.  >  2  C.impWll,  3C8,  374  ;  3  Howell  State  Trials,  824. 


JUDGES   UNDER   CHARLES   AND   JAMES.  21 

to  be  disputed.'''  ^      Genilemen,  lliat  was  worthy  of  some  judicial 
charges  which  you  and  I  have  heard. 

Charles  I.  (1625-1 6;39,)  pursued  the  same  course  of  tyranny  by 
the  same  steps.  Coventry  could  be  implicitly  relied  on  to  do  as 
commanded,  and  was  made  Lord  Keeper  in  1625.  When  the  ques- 
tion of  Ship-money  was  to  be  brought  forward  in  1636,  Chief  Justice 
Pleath  was  thought  not  fit  to  be  trusted  with  wielding  the  instrument 
of  tyranny,  and  accordingly  removed ;  "  and  Finch,  well  known  to  be 
ready  to  go  all  lengths,  was  appointed  in  his  place."  For  he  had 
steadfastly  maintained  that  the  King  was  absolute,  and  could  dis- 
pense with  law  and  parliament,  —  a  fit  person  to  be  a  Chief  Justice, 
or  a  Lord  Chancellor,  in  a  tyrant's  court,  ready  to  enact  iniquity  into 
law.  His  compliance  with  the  King's  desire  to  violate  the  first  prin- 
ciple of  Magna  Charta,  "  endeared  him  to  the  Court,  and  secured 
him  further  preferment  as  soon  as  any  opportunity  should  occur." 
So  he  was  soon  made  Lord  Chancellor  and  raised  to  the  peerage. 
Littleton  had  once  been  on  the  popular  side,  but  deserted  and  went 
over  to  the  Court  —  he  was  sure  of  preferment ;  and  as  he  became 
more  and  more  ready  to  destroy  the  liberties  of  the  People,  he  was 
made  Chief  Justice,  and  finally  Lord  Chancellor  in  1641.  Lane  was 
a  "  steady  friend  of  the  prferogative,"  and  so  was  made  Attorney- 
General  to  the  Prince  of  Wales,  and  thence  gradually  elevated  to  the 
highest  station. 

Other  Judicial  appointments  were  continually  made  in  the  same 
spirit.  Thus  when  Sir  Randolf  Crewe'  was  Chief  Justice  of  the 
King's  Bench,  the  government  questioned  him  to  ascertain  if  he  were 
"  sound,"  and  were  shocked  to  hear  him  declare  that  the  King  had  no 
right  to  levy  taxes  without  consent  of  Parliament,  or  imprison  his  sub- 
jects without  due  process  of  law.  He  was  "  immediately  dismissed 
from  his  office,"  (1626,)  and  Sir  Nicolas  Hyde  appointed  in  his  place. 
By  such  means  the  courts  were  filled  with  tools  of  the  King  or 
his  favorites,  and  the  pit  digged  for  the  liberties  of  the  People,  into 
which  at  last  there  fell  —  the  head  of  the  King ! 

Charles  II.  and  James  II.,  (1655-1686,)  did  not  mend  the  evil,  but 
appointed  for  judges  "  such  a  pack  as  had  never  before  sat  in  West- 
minster Hall."  Shaftesbury  and  Guildford  had  the  highest  judicial 
honors.  Lord  Chancellor  Finch,  mentioned  already,  had  been  ac- 
cused by  the  Commons  of  High  Treason  and  other  misdemeanors,  but 
escaped  to  the  continent,  and  returned  after  the  Restoration.  He 
was  appointed  one  of  the  Judges  to  try  the  Regicides.  Thus  he 
"  who  had  been  accused  of  high  treason  twenty  years  before  by  a  full 

'  Speacliein  the  Starre-Chamber,  London,  1616. 


22  CORRUPTION   OF   THE  JUDICIARY. 

parliament,  and  who  by  flying  from  their  justice  saved  his  life,  was 
appointed  to  judge  some  of  those  who  should  have  been  his  Judges."  ^ 
He  declared  in  Parliament  that  Milton,  for  services  rendered  to  the 
cause  of  liberty  while  Latin  Secretary  to  Cromwell,  "  deserved  hang- 
ing." 2 

In  these  reigns  such  men  as  Saunders,  Wright,  and  Scroggs,  were 
made  Judges,  men  of  the  vilest  character,  with  the  meanest  appetites, 
licentious,  brutal,  greedy  of  power  and  money,  idiotic  in  the  moral 
sense,  appointed  solely  that  they  might  serve  as  tools  for  the  oppres- 
sion of  the  People.  Among  these  infamous  men  was  George  Jef- 
freys, of  whom  Lord  Campbell  says,  — "  He  has  been  so  much 
abused  that  I  began  my  critical  examination  of  his  history  in  the 
hope  and  belief  that  I  should  find  that  his  misdeeds  had  been  exag- 
gerated, and  that  I  might  be  able  to  rescue  his  memory  from  some 
portion  of  the  obloquy  under  which  it  labors  ;  but  I  am  sorry  to  say 
that  in  my  matured  opinion  his  cruelty  and  his  political  profligacy 
have  not  been  sufficiently  exposed  or  reprobated  ;  and  that  he  was 
not  redeemed  from  his  vices  by  one  single  solid  virtue."  ^  But  in 
consequence  of  his  having  such  a  character,  though  not  well-grounded 
in  law,  he  was  made  a  Judge,  a  Peer,  and  a  Lord  Chancellor! 
Wright,  nearly  as  infamous,  miraculously  stupid  and  ignorant,  "  a 
detected  swindler,  knighted  and  clothed  in  ermine,  took  his  place 
among  the  twelve  judges  of  England."*  He  also  was  made  Chief 
Justice  successively  of  the  Common  Pleas  and  the  King's  Bench ! 
Lord  Campbell,  himself  a  judge,  at  the  end  of  his  history  of  the 
reign  of  Charles  and  James,  complains  of  "  the  irksome  task  of  relat- 
ing the  actions  of  so  many  men  devoid  of  political  principle  and 
ready  to  suggest  or  to  support  any  measures,  however  arbitrary  or 
mischievous,  for  the  purpose  of  procuring  their  own  advancement."  ^ 
It  was  tlie  practice  of  the  Stuarts  "  to  dismiss  judges  without  seeking 
any  other  pretence,  who  showed  any  disposition  to  thwart  govern- 
ment in  political  prosecutions."  ^  Nor  was  this  dismissal  confined  to 
cases  where  the  judges  would  obey  the  law  in  merely  Political  trials. 
In  10*^0  four  of  th(!  judges  denied  that  the  king  had  power  to  dis- 
pense with  the  laws  of  the  land  and  change  the  form  of  religion  : 
the  next  morning  Ihcy  were  all  driven  from  their  posts,  and  four 
others,  more  compliant,  were  appointed  and  the  judicial  "  opinion  was 
unanimous."  II(!reupon  Roger  Coke  says  well,  —  "the  king  .  .  .  will 
make  the  judges  in  Westminster  Hall  to  murder  1h(^  common  law,  as 
Wi'll  as  ihe  king  and  his  brother  desired  to  murder  the  parliament  by 
itself;  :ui(l  1()  this  end  tlu;  king,  when  he  would  make  any  judges 
wonlil   riKike  a  bargain  with  llieni,  that  tliey  should  declare  the  king's' 

'  I.ipIIow,  (inr.t.'.l  ill  'i  C;iiiipl.cll,4  70.         =  -1  I'.-iil.  Hist.  Ki'i.      '  3  Campbell,  394. 
•  2  CaiiiplHll  ('lii<:f  JiisticcH,  «(;.  »  3  Cainplmll,  ■)  73.       «  3  Ilallam,  U2. 


JONES,  TWYSDEN,  AND  KELYNG.  23 

power  of  dispensing  with  the  penal  laws  and  tests  made  against  re- 
cusants, out  of  parliament."  ^ 

Here,  Gentlemen  of  the  Jury,  I  must  mention  three  obscure  judges 
who  received  their  appointments  under  Stuart  kings.  Before  long  I 
shall  speak  of  their  law  and  its  application,  and  now  only  introduce 
them  to  you  as  a  measure  preliminary  to  a  more  intimate  acquaint- 
ance hereafter. 

1.  The  first  is  Sir  William  Jones,  by  far  the  least  ignoble  of  the 
three.  He  was  descended  from  one  of  the  Barons  who  wrung  the 
Great  Charter  from  the  hands  of  King  John  in  1618,  and  in  1628 
dwelt  in  the  same  house  which  sheltered  the  more  venerable  head  of 
his  Welsh  ancestor.  In  1628  he  was  made  judge  by  Charles  I. 
He  broke  down  the  laws  of  the  realm  to  enable  the  king  to  make 
forced  loans  on  his  subjects,  and  by  his  special  mandate  (Lettre  de 
Cachet)  to  imprison  whom  he  would,  as  long  as  it  pleased  him,  and 
without  showing  any  reason  for  the  commitment  or  the  detention ! 
Yes,  he  supported  the  king  in  his  attempt  to  shut  up  members  of 
parliament  for  words  spoken  in  debate  in  the  house  of  commons 
itself;  to  levy  duties  on  imports,  and  a  tax  of  ship-money  on  the  land. 
He  was  summoned  before  parliament  for  his  offences  against  public 
justice,  and  finally  deprived  of  office,  though  ungratefully,  by  the  king 
himself.2 

2.  Thomas  Twysden  was  counsel  for  George  Coney  in  1655,  a 
London  merchant  who  refused  to  pay  an  illegal  tax  levied  on  him  by 
Cromwell  —  who  followed  in  the  tyrannical  footsteps  of  the  king  he 
slew.  Twysden  was  thrown  into  the  Tower  for  defending  his  client 
—  as  Mr.  Sloane,  at  Sandusky,  has  just  been  punished  by  the  honor- 
able court  of  the  United  States  for  a  similar  offence,  —  but  after  a 
few  days  made  a  confession  of  his  "  error,"  defending  the  just  laws 
of  the  land,  promised  to  offend  no  more,  and  was  set  at  liberty, 
ignominiously  leaving  his  client  to  defend  himself  and  be  defeated. 
This  Twysden  was  made  judge  by  Charles  11.  The  reporters  record- 
ing his  decisions  put  down  "  Ttvysden  in  furore^''  thinly  veiling  the 
judicial  wrath  in  modest  Latin.  He  was  specially  cruel  against 
Quakers  and  other  dissenters,  treating  George  Fox,  Margarett  Fell, 
and  John  Bunyan  with  brutal  violence.^ 

3.  Sir  John  Kelyng  is  another  obscure  judge  of  those  times.  In 
the  civil  war  he  was  a  violent  cavalier,  and  "  however  fit  he  might  be 
to  charge  the  Roundheads  under  Prince  Rupert,  he  was  very  unfit  to 

1  8  St.  Tr.  195,  note. 

■  Account  of  him  in  Preface  to  his  Keports,  (1675)  ;  3  St.  Tr.  162,  293,  844,  1181 
2  Pari.  Hist.  869  ;  1  Rushworth,  661,  etaJ.\  Whitlocke,  14,  et  al. 
*  6  St.  Tr.  634  ;  1  CampbeU  Justices,  442. 


24  CORRUPTION   OF  THE  JUDICIARY. 

charge  a  jury  in  Westminster  Hall."  In  1660  he  took  part  in  the 
trial  of  the  Regicides  and  led  in  the  prosecution  of  Colonel  Hacker, 
who  in  1649  had  charge  of  the  execution  of  Charles  I.  In  1662  he 
took  part  in  the  prosecution  of  Sir  Henry  Vane,  and  by  his  cruel 
subtlety  in  constructing  law,  that  former  governor  of  Massachusetts, 
—  one  of  the  most  illustrious  minds  of  England,  innocent  of  every 
crime,  was  convicted  of  high  treason  and  put  to  death.^  For  this 
service,  in  1663  Kelyng  was  made  a  judge ;  and  then,  by  loyal  zeal 
and  judicial  subserviency,  he  made  up  "  for  his  want  of  learning  and 
sound  sense."  But  he  was  so  incompetent  that  even  the  court  of 
Charles  II.  hesitated  to  make  him  more  than  a  puny  judge.  But  he 
had  been  a  "  valiant  cavalier,"  and  had  done  good  service  already  in 
making  way  with  such  as  the  king  hated,  and  so  after  the  death  of 
Sir  Nicolas  Hyde,  he  was  made  Lord  Chief  Justice  in  his  place. 
"  In  this  office,"  says  Judge  Campbell,  he  "  exceeded  public  expecta- 
tion by  the  violent,  fantastical,  and  ludicrous  manner  in  which  he 
conducted  himself."  -  But  I  will  not  now  anticipate  what  I  have  to 
say  of  him  in  a  subsequent  part  of  this  defence. 

Gentlemen  of  the  Jury,  we  shall  meet  these  three  together  again 
before  long,  and  I  shall  also  speak  of  them  "  singly  or  in  pairs."  In 
the  mean  time  I  will  mention  one  similar  appointment  in  the  reign  of 
George  the  III.  —  the  last  king  of  New  England. 

In  1770  Sergeant  Glynn,  in  Parliament,  moved  for  an  inquiry  into 
the  administration  of  criminal  justice.  Edmund  Thurlow,  a  rough 
venal  man,  then  recently  appointed  solicitor-general,  proposed  that  a 
severe  censure  should  be  passed  on  him  for  the  motion.  Thurlow 
wanted  the  trial  by  jury  abolished  in  all  cases  of  libel,  so  that  the 
liberty  of  the  people  should  be  in  the  exclusive  care  of  government 
attorneys  and  judges  appointed  by  the  crown.  Hear  him  speak  on 
the  6th  of  December,  1770. 

"  In  my  opinion  no  man  should  be  allowed  with  impunity  to  make  a  wanton  attack 
upon  such  venerable  cliaracters  as  the  judges  of  the  land.  We  award  costs  and  dam- 
ages to  tlie  aggrieved  party  in  the  most  trifling  actions.  By  what  analogy,  then,  can 
we  refuse  the  same  ju.stice  in  the  most  important  cases,  to  the  most  important  person- 
ages? If  we  allow  every  j)itiful  patriot  thus  to  insult  us  with  ridiculous  accusations, 
without  making  him  pay  forfeit  for  his  temerity,  Ave  shall  be  eternally  pestered  with 
the  humming  and  buzzing  of  these  stingless  wasps.  Though  they  cannot  wound  or 
poison,  they  will  tease  and  vex.  They  will  divert  our  attention  from  the  important 
affairs  of  State  to  their  own  m(!an  antipathies,  and  passions,  and  prejudices.  Did  tliev 
not  count  nj)oti  the  spirit  of  the.  times  and  imagine  that  the  same  latitude  which  is 
taken  by  tli<;  libellers  is  here  allowable,  they  would  not  have  dared  to  oHer  so  gross  an 
outrage.     I  hope  we  f<hall  now  handle  them  so  roughly  as  to  make  this  the  last  of  such 

'  G  St.  Tr.  \C,\.  M  Campbell  Justices,  401. 


ATTORNEY-GENERAL   TIIURLOW.  25 

audacious  attempts.  They  are  already  ridiculous  and  contemptible.  To  crown  their 
disgrace,  let  us  inflict  some  exemplary  punishment.  Else  noiie  of  us  is  safe.  Virtue 
and  iionor,  you  see  from  this  instance,  are  no  safeguard  from  their  attacks." 

"  The  nature,  the  direct  eirect,  and  the  remote  consequences  of  a  State  libel,  are  so 
comi)licated  and  involved  with  various  considerations  of  great  pith  and  moment,  that 
few  juries  can  be  adequate  judges.  So  many  circumstances  are  at  once  to  be  kept  in 
view,  so  many  ponderous  interests  are  to  be  weighed,  so  many  com])arisons  to  be  made, 
and  so  many  judgments  formed,  that  the  mind  of  an  ordinary  man  is  distracted  and 
confounded,  and  rendered  incapable  of  coming  to  any  regular  conclusion.  None  but 
a  judge,  a  man  that  has  from  his  infancy  been  accustomed  to  decide  intricate  cases,  is 
equal  to  such  a  diflicult  task.  If  we  even  suppose  the  jury  sufliciently  enlightened  to 
unravel  those  knotty  points,  yet  there  remains  an  insuperable  objection.  In  State 
libels,  their  passions  arc  frequently  so  much  engaged,  tliat  they  may  be  justly  con- 
sidered as  parties  concerned  against  the  crown." 

"In  order,  therefore,  to  preserve  the  balance  of  our  constitution,  let  its  leave  to  the 
JufJc/es,  as  the  most  indifTerent  persons,  the  right  of  determining  the  malice  or  innocence 
of  the  intention." 

"It  is  not  that  I  think  the  intention  a  matter  of  fact;  no,  in  the  sense  put  upon  it  by 
the  judges,  it  is  a  matter  of  law." 

"  Much  dust  has  been  raised  about  civil  and  criminal  actions.  But  to  what  purpose  ? 
Is  not  reparation  to  be  made  to  the  public  for  any  injury  which  it  may  have  sustained, 
as  much  as  to  an  individual  ?  Is  the  welfare  of  the  nation  in  general,  of  less  conse- 
quence than  that  of  a  single  person  ?  Where  then  is  the  propriety  of  making  such  a 
bustle  about  the  malice  or  innocence  of  the  intention  ?  The  injury  done  is  the  only 
proper  measure  of  the  punishment  to  be  inflicted,  as  well  as  of  the  damage  to  be 
assessed.  Since  you  cannot  plead  the  intention  as  a  mitigation  in  the  latter  case, 
neither  can  you  in  the  former."^ 

What  followed  ?  On  the  23d  of  July,  1771,  he  was  made  Attorney- 
General.  His  subsequent  history  did  not  disappoint  the  prophecy 
uttered  above  by  his  former  conduct  and  his  notorious  character.  "  In 
truth  his  success  was  certain,  with  the  respectable  share  he  possessed 
of  real  talents  and  of  valuable  requirements  —  strongly  marked 
features,  piercing  eyes,  bushy  eyebrows,  and  a  sonorous  voice,  all 
worked  to  the  best  effect  by  an  immeasurable  share  of  self-confi- 
dence —  he  could  not  fail."  ^  He  hated  America  with  the  intense 
malignity  of  a  low  but  strong  and  despotic  nature,  and  "  took  a  most 
zealous  part  and  uttered  very  violent  language  against  the  colonists. 
He  scorned  the  very  notion  of  concession  or  conciliation  ;  he  con- 
sidered 'sedition'  and  'treason,'  (like  tobacco  and  potatoes.)  the 
peculiar  plants  of  the  American  soil.  The  natives  of  these  regions 
bethought  were  born  to  be  taxed." ^  He  favored  the  Stamp  Act, 
the  Coercion  Bill,  —  quartering  soldiers  upon  us,  sending  Americans 
beyond  seas  for  trial,  —  the  Boston  Port  Bill,  and  all  the  measures 
against  the  colonies.  "  To  say  that  we  have  a  right  to  tax  America 
and  never  exercise  that  right,  is  ridiculous,  and  a  man  must  abuse  his 

^  16  Pari.  Hist.  1291,  1292,  1293.  ^  5  Campbell,  398.  '  5  Campbell,  410. 

3 


26  CORRUPTION   OF   THE  JUDICIARY. 

understanding  very  much  not  to  allow  of  that  right;"  "the  right  of 
taxing  was  never  in  the  least  given  up  to  the  Americans."  ^  On 
another  occasion  he  said,  that  "  as  attorney-general  he  had  a  right  to 
set  aside  every  charter  in  America."  ^  What  followed  ?  Notwith- 
standing his  youthful  profligacy,  the  open  profanity  of  his  public 
and  private  speech,  and  his  living  in  public  and  notorious  contempt 
of  matrimony,  —  he  was  made  Lord  Chancellor  and  elevated  to  the 
peerage  in  1778!     Him  also  we  shall  meet  again. 

Gentlemen  of  the  Jury,  I  might  as  well  try  to  bale  all  the  salt 
water  out  of  the  sea  as  to  mention  every  glaring  and  notorious  in- 
stance w^here  an  oppressive  government  has  appointed  some  discarder 
of  all  Higher  Law  for  its  servant  in  crushing  the  People.  Come 
therefore  to  the  next  point. 


(H.)  The  next  step  is  by  means  of  such  Judges  to  punish  and  destroy 
or  silence  men  ivho  oppose  the  wickedness  of  the  party  in  power ^  and  the 
encroachments  of  despotism.  Let  me  describe  the  general  mode  of 
procedure,  and  then  illustrate  it  by  special  examples. 

1.  In  the  Privy  Council,  or  elsewhere,  it  is  resolved  to  punish  the 
obnoxious  men,  —  and  the  business  is  intrusted  to  the  law-oflicers  of 
the  crown,  appointed  for  such  functions. 

2.  They  consult  and  agree  to  pervert  and  twist  the  law  —  statute 
or  common  —  for  that  purpose.  By  this  means  they  gratify  their 
master,  and  prepare  future  advancement  for  themselves. 

3.  The  precedent  thus  established  becomes  the  basis  for  new  oper- 
ations in  the  future,  and  may  be  twisted  and  perverted  to  serve  other 
cases  as  they  occur. 

Now,  Gentlemen,  look  at  some  examples  taken  from  British  his- 
tory, in  times  of  the  same  Kings  mentioned  before. 

1.  In  1610  two  Puritans  for  refusing  the  ex  officio  oath,  were 
clapped  ill  .lail  by  tlic  commissioners.  They  were  brought  on  habeas 
corpus  before  a  court,  and  Mr.  Fuller,  their  counsel,  a  learned  lawyer, 
insisted  that  they  were  imprisoned  without  due  process  of  law.  For 
this  "contempt  of  court"  he  was  thrown  into  jail  by  Archbishop 
Bancroft,  whence  he  was  rescued  only  by  death.  ^ 

2.  In  1613  there  were  many  murmurs  among  the  People  of  Eng- 
land at  tiic  tyranny  of  .Tames.  Fine  and  imprisonment  did  not  quell 
the  disturljancc;  so  a  more,  dreadful  example  was  thought  needful. 
The  oflicials  of  Govcriiiiirnt  broke  into  the  study  of  Rev.  Edmund 
Peachuni,  a   I'rotcstaiii  iiiinister,  sixty  or  seventy  years   old.     In   an 

'  17  r.irl.  Hist.  1313.        »  18  St.  Tr.  90!).         '  roirco's  Vindication,  (1717,)  174. 


TEACHAM   AND   BACON'S   RACK.  27 

nncovcred  cask  they  found  a  manuscript  sermon,  never  preached,  nor 
designed  for  the  pulpit  or  the  press,  never  shown  to  any  one.  It 
contained  some  passages  which  might  excite  men  to  resist  tyranny. 
He  was  arrested,  and  thrown  into  Jail,  all  his  papers  seized.  The 
Government  resolved  to  prosecute  him  for  high  treason.  Francis 
Bacon,  the  powerful  and  corrupt  Attorney-General,  managed  the 
prosecution.  Before  trial  was  ventured  upon,  he  procured  an  extra- 
judicial opinion  of  the  Judges  appointed  for  such  services,  —  irregu- 
larly given,  out  of  court,  that  they  would  declare  such  an  act  high 
treason. 

But  a  manuscript  sermon,  neither  preached  nor  designed  for  the 
public,  was  hardly  evidence  enough  of  treason  even  for  'such  Judges 
—  so  purchased,  for  such  an  Attorney  —  so  greedy  of  preferment,  with 
such  a  Cabinet  and  such  a  King.  For  all  those,  like  the  Pharisees 
of  old,  "  feared  the  People."  So  their  victim  was  tortured  on  the  rack, 
and  twelve  leading  questions  prepared  by  the  Government  officials, 
were  put  to  him  there.  I  quote  Secretary  Winwood's  record  —  still 
extant  in  his  own  handwriting  —  "He  was  this  day  examined  be- 
fore torture,  in  torture,  between  torture,  and  after  torture ;  notwith- 
standing nothing  could  be  drawn  from  him,  he  still  persisting  in  his 
obstinate  and  insensible  denials  and  former  answers."  Bacon  was 
present  at  the  torture,  which  took  place  in  the  Tower,  Jan.  19,  1614, 
O.  S.  (SOth  Jan.  1615,  N.  S.).  In  August  he  was  tried  for  high 
treason  —  "compassing  and  imagining  the  King's  death"  —  before 
a  packed  jury ;  against  law,  and  without  legal  evidence.  He  was  of 
course  found  guilty  under  the  ruling  of  the  Court!  But  public 
opinion,  even  then  making  tyrants  "tremble  in  their  capitals,"  was 
so  indignant  at  the  outrage  that  the  execution  was  not  ventured  on, 
and  he  was  left  to  languish  in  Jail,  till  on  the  27th  of  March,  1616,  a 
King  more  merciful  took  the  old  minister  where  the  wicked  cease 
from  troubling.^ 

In  this  case,  Gentlemen  of  the  Jury,  you  will  notice  three  violations 
of  the  law. 

(1.)  The  opinion  of  the  Judges  before  the  trial  was  extrajudicial 
and  illegal. 

(2.)   The  application  of  torture  was  contrary  to  law. 

(3.)  The  statute  of  Treason  was  wrested  to  apply  to  this  case  — 
and  a  crime  was  constructed  by  the  servants  of  the  court. 

It  is  curious  to  read  the  opinion  of  James  himself.  "  The  British 
Solomon"  thus  wrote:  — 

"  So  the  only  thing  the  Judges  can  doubt  of  is  of  the  delinquent's  intention,  on  his 
bare  denial  to  clcai-  him  [hhiiself  ],  since  nature  teaches  every  man  to  defend  his  hfe 
as  he  may ;  and  Avhether  in  case  there  was  a  doubt  herein,  the  Judges  should  not 
rather  incline  to  that  side   [namely,  the  side  of  the  Government,]  wherein  all  proba- 

1  2  St.  Tr.  869;  16  Montagu's  Bacon,  clxvi.;  2  Campbell,  291. 


28  CORRUPTIOX   OF   THE   JUDICIARY. 

bilitylles:  but  if  Judges  will  needs  trust  rather  the  bare  negative  of  an  in/ainoiis  de- 
linquenL —  then  all  the  probabilities,  or  rather  infallible  consequences  upon  the  other 
part,  caring  moi-e  for  the  safety  of  such  a  monster  than  the  preservation  of  a  ci-own.in 
all  ao-es  following,  whereupon  depend  the  lives  of  many  millions,  happy  then  are  all 
desperate  and  seditious  knaves,  but  the  fortune  of  this  crown  is  more  than  miserable. 
Which  God  forefend."  ^ 

3.  Ill  1633,  Laud,  a  tyrannical,  ambitious  man,  and  a  servile 
creature  of  the  King,  mentioned  before,  was  made  Archbishop  of 
Canterbury,  continuing  Bishop  of  London  at  the  same  time.  Charles 
L  was  strongly  inclined  to  Romanism,  Laud  also  leaned  that  way, 
aiming  to  come  as  near  as  possible  to  the  Papal  and  not  be  shut  out 
of  the  English  Church.  He  made  some  new  regulations  in  regard 
to  the  Communion  Table  and  the  Lord's  Supper.  John  Williams, 
before  mentioned.  Dean  of  Westminster  and  Bishop  of  Lincoln,  who 
had  been  Lord  Keeper  under  King  James,  wrote  a  book  against  those 
innovations  ;  besides,  in  his  episcopal  court  he  had  once  spoken  of  the 
Puritans  as  "good  subjects,"  and  of  his  knowing  "that the  King  did 
not  wish  them  to  be  harshly  dealt  with."  In  1637  Laud  directed  that 
he  should  be  prosecuted  in  the  Star-Chamber  for  "  publishing  false 
news  and  tales  to  the  scandal  of  his  Majesty's  government ;  "  and  "  for 
revealing  counsels  of  State  contrary  to  his  oath  of  a  Privy  Counsellor." 
He  was  sentenced  to  pay  a  fine  of  £10,000,  —  equal  to  $50,000,  or 
thrice  the  sum  in  these  times ;  to  be  suspended  from  all  offices,  and 
kept  a  close  prisoner  in  the  Tower  during  the  King's  pleasure  — 
whence  the  Revolution  set  him  at  liberty.  Besides  he  wrote  private 
letters  to  Mr.  Osbalderston,  and  called  Laud  "the  little  great  man," 
for  this  he,  in  1639,  was  fined  <£5,000  to  the  King,  and  £3,000  to  the 
Archbishop.  Osbalderston  in  his  letters  had  spoken  of  the  "great 
Leviathan"  and  the  "little  Urchin,"  and  was  fined  £5,000,  to  the 
King,  and  the  same  to  the  Archbishop,  and  sentenced  also  to  stand 
in  the  pillory  with  his  ears  nailed  to  itl^ 

4.  In  1629  Richard  Chambers,  a  merchant  of  London,  complained 
to  the  Privy  Council  of  some  illegal  and  unjust  treatment,  and  de- 
clared "  that  the  merchants  in  no  part  of  the  world  are  so  screwed  and 
wrung  as  in  England  ;  that  in  Turkey  they  have  more  encourage- 
nierit."  Laud,  who  hated  freedom  of  speech  and  liberal  comments 
on  the  government  as  much  as  "eminent  citizens"  nowadays,  is 
«aid  to  have  told  iIk;  king,  "  If  your  majesty  had  many  such  Cham- 
bers, you  wonhl  soon  liiive  no  Chamber  left  to  rest  in."  The  merchant 
was  tried  l.fforc  the  "commissioners"  at  the  Star-Chamber,  and 
fined  £:i,0()(),  and  condemned  to  make  a  "  submission  for  his  ffreat 
oficiicc,"'!  which  1h(!  stout    Puritan  refused  to  do,  and  was  kept  in 

>  2  St.  Tr.  87:».  2  3  St.  Tr.  7G9  ;    2  Campbell,  400. 

•  3  St.  Tr.  373;  Fnyikyn,;jGl  ;  2  Hallain  (Paris,  1841),  G  ac  ctium  13;  2  Mrs.  Mac- 
aulay,  16,  45,  C5. 


CHAMBERS,    ELIOT,   LEIGHTON.  29 

prison  till  the  Court  of  King's  Bench,  faithful  to  the  law,  on  Habeas 
Corpus,  admitted  him  to  bail:  for  which  they  were  reprimanded. 
Laud  and  all  the  ecclesiastical  members  of  the  "commission"  wished 
his  line  .£3,000. 

5.  In  his  place  in  Parliament  in  IG'29,  Sir  John  Eliot,  one  of  the 
noblest  men  in  England's  noblest  age,  declared  that  "  the  Council  and 
Judges  had  all  conspired  to  trample  underfoot  the  liberties  of  the 
subject."  Gentlemen,  the  fact  was  as  notorious  as  the  advance  of 
the  Slave  Power  now  is  in  America.  But  a  few  days  after  the  king 
(Charles  I.)  had  dismissed  his  refractory  Parliament,  Eliot,  with  Hollis, 
Long,  Selden,  Strode,  and  Valentine,  most  eminent  members  of  the 
commons,  and  zealous  for  liberty  and  law,  was  seized  by'the  king's 
command  and  thrown  into  prison.  The  Habeas  Corpus  was  de- 
manded — it  was  all  in  vain,  for  Laud  and  Strafford  were  at  the  head 
of  affairs,  and  the  priests  and  pliant  Judges  in  Westminster  Hall  — 
Jones  was  one  of  them  —  clove  down  the  law  of  the  land  just  as 
their  subcatenated  successors  did  in  Boston  in  1851.  The  court  de- 
creed that  they  should  be  imprisoned  during  the  king's  pleasure,  and 
not  released  until  making  submission  and  giving  security  for  good 
behavior.  Eliot  was  fined  c£2,000,  Hollis  and  Valentine  in  smaller 
sums.  Eliot  —  the  brave  man  —  refused  submission,  and  died  in  the 
Tower.  Thus  was  the  attack  made  on  all  freedom  of  speech  in  Par- 
liament 1 1 

6.  In  1630,  the  very  year  of  the  first  settlement  of  Boston,  on  the 
4th  of  June,  Rev.  Dr.  Alexander  Leighton  was  brought  before  the 
Court  of  High  Commission,  in  the  Star-Chamber,  to  be  tried  for  a 
seditious  libel.  He  had  published  "  An  Appeal  to  the  Parliament,  or 
a  Plea  against  Prelacy,"  a  work  still  well  known,  remonstrating 
against  certain  notorious  grievances  in  church  and  State,  "  to  the  end 
the  Parliament  might  take  them  into  consideration  and  give  such 
redress  as  might  be  for  the  honor  of  the  king,  the  quiet  of  the  people, 
and  the  peace  of  the  church,"  the  cpurt  of  commissions  accounted  it 
"  a  most  odious  and  heinous  offence,  deserving  the  most  serious  pun- 
ishment the  court  could  inflict,  for  framing  a  book  so  full  of  such 
pestilent,  devilish,  and  dangerous  assertions."  The  two  Chief  Justices 
declared  if  the  case  had  been  brought  to  their  courts,  they  would 
have  proceeded  against  him  for  Treason,  and  it  was  only  "his 
majesty's  exceeding  great  mercy  and  goodness "  which  selected  the 
milder  tribunal.  His  sentence  was  a  fine  of  X  10,000,  to  be  set  in  the 
pillory,  whipped,  have  one  ear  cut  off,  one  side  of  his  nose  slit,  one 
cheek  branded  with  S.  S.,  Sower  of  Sedition,  and  then  at  some  con- 
venient time  be  whipped  again,  branded,  and  mutilated  on  the  other 

1  3  St.  Tr.  293;  1  Puishwortli ;   2  Ilallam,  2;  2  Pari.  Hist.  4SS,  50-1;  Foster's  Eliot, 
100 ;  2  Mrs.  Macaiilay,  cb.  i.  ii. 


30  CORRUPTION   OF   THE   JUDICIARY. 

side,  and  confined  in  the  Fleet  during  life !  Before  the  punishment 
could  be  inflicted  he  escaped  out  of  prison,  but  was  recaptured  and 
the  odious  sentence  fully  executed.  Those  who  "  obstructed "  the 
officer  in  the  execution  of  that  "process"  were  fined  £500  a  piece.i 
Gentlemen  of  the  Jury,  which  do  you  think  would  most  have  aston- 
ished the  Founders  of  Massachusetts,  then  drawing  near  to  Boston, 
that  trial  on  the  4th  of  June,  1630,  or  this  trial,  two  hundred  and 
twenty-five  years  later  ?  At  the  court  of  Charles  it  was  a  great  honor 
to  mutilate  the  body  of  a  Puritan  minister. 

But  not  only  did  such  judges  thus  punish  the  most  noble  men  who 
wrote  on  political  matters,  there  was  no  freedom  of  speech  allowed  — 
so  logical  is  despotism ! 

7.  William  Prynn,  a  zealous  Puritan  and  a  very  learned  lawyer, 
wrote  a  folio  against  theatres  called  "  a  Scourge  for  Stage-Players," 
dull,  learned,  unreadable  and  uncommon  thick.  He  was  brought  to 
the  Slar-Chamber  in  1632-3,  and  Chief  Justice  Richardson  —  who 
had    even    then    "but    an    indifl'erent    reputation    for    honesty    and 

veracity  " gave  this  sentence  :  "  Mr.  Prynn,  I  do  declare  you  to  be 

a  Schism-Maker  in  the  Church,  a  Sedition-Sower  in  the  Common- 
wealth, a  wolf  in  sheep's  clothing;  in  a  word  'omnium  malorum 
nequissimus' —  [the  wickedest  of  all  scoundrels].  I  shall  fine  him 
£10,000,  which  is  more  than  he  is  worth,  yet  less  than  he  deserveth ; 
I  will  not  set  him  at  liberty,  no  more  than  a  plagued  man  or  a  mad 
doo-,  who  though  he  cannot  bite,  yet  will  he  foam ;  he  is  so  far  from 
bein"-  a  sociable  soul  that  he  is  not  a  rational  soul;  he  is  fit  to  live  in 
dens  with  such  beasts  of  prey  as  wolves  and  tygers  like  himself; 
therefore  I  do  condemn  him  to  perpetual  Imprisonment,  as  those 
monsters  that  are  no  longer  fit  to  live  among  men  nor  to  see  fight." 
"  I  would  have  him  branded  in  the  forehead,  slit  in  the  nose,  and  his 
ears  cropped  too."  The  sentence  was  executed  the  7th  and  10th  of 
May,  1633.2  J3ut  nothing  intimidated,  the  sturdy  man  committed 
other  oflences  of  like  nature,  "obstructing"  other  "officers,"  and  was 
punished  again,  and  banished.  But  on  the  summoning  of  Parlia- 
nxMit  returned  to  England,  and  became  powerful  in  that  Revolution 
which  crushed  the  tyrants  of  the  time. 

8.  In  J 685,  James  II.  was  in  reality  a  Catholic.  He  wished  to 
restore;  Romanism  to  England  and  abolish  the  work  of  tlie  Reforma- 
tion, the  heller  1o  eslablisli  th(;  despotism  which  all  of  his  fiunily  had 
sought  to  plant,  lie  was  determined  to  punish  such  as  spoke  against 
the  Paj)al  Cliurch,  though   no   law  jjrohibited  such  speaking.     Judge 

'  :i  St.  Tr.  .'tH.'i ;  Land's  Diary,  dtli  November;   2  Ilallam,  28. 

'  .T  St.  'Ir.  501  ;  2  Ilallam,  28,  and  his  authorities.  See  also  2  Echard,  109,  el  seq., 
121,  ft  fO'i;  202,  .'Ui8,  ."ilO;  the  roiriarks  of  Ilume,  Hist.  eh.  Hi.,  remind  me  of  the  tone 
of  the  fu"itivu  slave  bill  Journals  of  Uoston  in  1850-51. 


BAXTER  IN  JEFFREYS'  COURT.  31 

Jeffreys,  a  member  of  the  cabinet  and  favorite  of  the  king,  was  at 
that  time  chief  justice  —  abundantly  fit  for  the  work  demanded  of 
him.  The  pious  and  venerable  Richard  Baxter  was  selected  for  the 
victim.     Let  Mr.  Macaulay  tell  the  story. 

"  lu  a  Commentary  on  tlie  New  Testament,  he  had  complained,  ■with  some  bitterness, 
of  tlie  persecution  which  the  Dissenters  suiFered.  That  men,  who,  for  not  using  the 
Prayerbook,  had  been  driven  from  their  homes,  stripped  of  their  property,  and  locked 
up  in  dungeons,  should  dare  to  utter  a  murmur,  was  then  thought  a  high  crime  against 
the  State  and  Church.  Roger  Lestrange,  the  champion  of  the  government,  and  the 
oracle  of  the  clergy,  sounded  the  note  of  war  in  the  Observator.  An  information 
was  filed.  Baxter  begged  that  he  might  be  allowed  some  time  to  prepare  for  his  de- 
fence. It  was  on  the  day  on  which  Oates  was  pilloried  in  Palace  Yard  that  the  illus- 
trious chief  of  the  Puritans,  oppressed  by  age  and  infirmities,  came  to  Westminster 
Hall  to  make  this  request.  JeiFreys  burst  into  a  storm  of  rage.  'Not  a  minute,' he 
cried,  '  to  save  his  life.  I  can  deal  with  saints  as  well  as  with  sinners.  There  stands 
Oates  on  one  side  of  the  pillorj- ;  and  if  Baxter  stood  on  the  other,  the  tAvo  greatest 
rogues  in  the  kingdom  would  stand  together." 

"  When  the  trial  came  on  at  Guildhall,  a  crowd  of  those  who  loved  and  honored 
Baxter,  filled  the  court.  At  his  side  stood  Doctor  William  Bates,  one  of  the  most 
eminent  Nonconformist  divines.  Two  Whig  barristers  of  great  note,  PoUexfen  and 
Wallop,  appeared  for  the  defendant." 

''  Pollexfeu  had  scarce  begun  his  address  to  the  jury,  Avheu  the  chief  justice  broke 
forth:  'PoUexfen,  I  know  you  well.  I  will  set  a  mark  on  you.  You  are  the  patron 
of  the  faction.  This  is  an  old  rogue,  a  schismatical  knave,  a  hypocritical  villain.  lie 
hates  the  Liturgy.  He  would  have  nothing  but  longwinded  cant  without  book  ; '  and 
then  his  lordship  turned  up  his  eyes,  clasped  his  hands,  and  began  to  sing  through  his 
nose  in  imitation  of  what  he  supposed  to  be  Baxter's  style  of  praying,  '  Lord,  we  are 
thy  people,  thy  peculiar  people,  thy  dear  people.'  PoUexfen  gently  reminded  the 
conrt  that  his  late  majesty  had  thought  Baxter  deserving  of  a  bishopric.  '  And  what 
ailed  the  old  blockhead  then,'  cried  Jeffreys,  '  that  he  did  not  take  it  ?  '  His  fury 
now  rose  almost  to  madness.  He  called  Baxter  a  dog,  and  swore  that  it  would  be  no 
more  than  justice  to  whip  such  a  villain  through  the  whole  city." 

"  Wallop  interposed,  but  fared  no  better  than  his  leader.  '  You  are  in  all  these 
dirty  causes,  Mr.  Wallop,'  said  the  judge.  '  Gentlemen  of  the  long  robe  ought  to  be 
ashamed  to  assist  such  fiictious  knaves.'  The  advocate  made  another  attemj^t  to  ob- 
tain a  hearing,  but  to  no  purpose.  '  If  you  do  not  know  your  duty,'  said  Jeffreys, 
'  I  will  teach  it  you.' 

"  Wallop  sat  down,  and  Baxter  himself  attempted  to  put  in  a  word ;  but  the  chief 
justice  drowned  all  expostulation  in  a  torrent  of  ribaldry  and  invective,  mingled  with 
scraps  of  Hudibras.  'My  lord,'  said  the  old  man,  'I  have  been  much  blamed  by 
Dissenters  for  speaking  respectfully  of  bishops.' 

"' Baxter  for  bishops ! '  cried  the  judge;  'that's  a  merry  conceit  indeed.  I  know 
■what  you  mean  by  bishops  —  rascals  like  yourself,  Kidderminster  bishops,  factious, 
snivelling  Presbyterians ! ' 

"  Again  Baxter  essayed  to  speak,  and  again  Jeffreys  bellowed,  '  Eichard,  Pvicliard, 
dost  thou  think  we  will  let  thee  poison  the  court?  Richard,  thou  art  an  old  knave. 
Thou  hast  written  books  enough  to  load  a  cart,  and  every  book  as  full  of  sedition  as  an 
egg  is  full  of  meat.  By  the  grace  of  God,  I'll  look  after  thee.  1  see  a  great  many  of 
your  brotherhood  waiting  to  know  what  will  befall  their  mighty  Don.  And  there,'  he 
continued,  fixing  his  savage  eye  on  Bates,  'there  is  a  doctor  of  the  party  at  your 
elbow.     But,  by  the  grace  of  God  Almighty,  I  will  crush  you  all ! ' 


32  CORRUPTION   OF   TDE  JUDICIARY. 

"  Baxter  hckl  his  peace.  But  one  of  the  junior  counsel  for  the  defence  made  a  last 
effort,  and  undertook  to  show  that  the  words  of  which  complaint  was  made,  would  not 
bear  t!ie  construction  put  on  them  by  the  information.  With  this  view  he  began  to 
read  the  context.  In  a  moment  he  was  roared  down.  '  You  sha  'n't  turn  the  court 
into  a  conventicle!'  The  noise  of  weeping  was  heard  from  some  of  those  who  sur- 
rounded Baxter.     '  Snivelling  calves!'  said  the  judge." ^ 

He  was  sentenced  to  pay  a  fine  of  500  marks,  to  lie  in  prison  till  he 
paid  it,  and  be  bound  to  good  behavior  for  seven  years.  Jeffreys,  it 
is  said,  wished  him  also  to  be  whipped  at  the  tail  of  a  cart.^  But  the 
King  remitted  his  fine. 

Throughout  the  reign  of  James  11.  the  courts  of  law  became  more 
and  more  contemptible  in  the  eyes  of  the  people.  "  All  the  three 
common  law  courts  were  filled  by  incompetent  and  corrupt  Judges."  ^ 
But  their  power  to  do  evil  never  diminished. 

9.  James  II.  wished  to  restore  the  Catholic  form  of  religion,  rightly 
looking  on  Protestantism  as  hostile  to  his  intended  tyranny;  so  he 
claimed  a  right  to  dispense  with  the  laws  relating  thereto,  put  a 
Jesuit  into  his  Privy  Council,  expelled  Protestants  from  their  offices, 
and  filled  the  vacancy  thus  illegally  made  with  Papists ;  he  appointed 
Catholic  bishops.'*  In  1688  he  published  a  proclamation.  It  was 
the  second  of  the  kind,  —  dispensing  with  all  the  laws  of  the  realm 
against  Catholicism ;  and  ordered  it  to  be  read  on  two  specified  Sun- 
days during  the  hours  of  service  in  all  places  of  public  worship.  This 
measure  seemed  to  be  a  special  insult  to  the  Protestants.  The 
declaration  of  indulgence  was  against  their  conscience,  and  in  viola- 
tion of  the  undisputed  laws  of  the  land,  but  Chief  Justice  Wright 
declared  from  the  bench  his  opinion  that  it  was  "legal  and  obliga- 
tory," and  on  the  day  appointed  for  reading  the  decree  attended 
church  "to  give  weight  to  the  solemnity,"  and  as  it  was  not  read  — 
for  the  clerk  "had  forgot  to  bring  a  copy,"  —  he  " indecently  in  the 
hearing  of  the  congregation  abused  the  priest,  as  disloyal,  seditious, 
and  irreligious." 

But  the  clergy  thought  diflTcrently  from  the  Chief  Justice  —  Episco- 
palians and  Dis.^eiitcrs  agreeing  on  this  point.  Seven  bishops  peti- 
tioned the  King  that  llicy  might  not  be  obliged  to  violate  their  con- 
.sciencc,  the  articles  of  their  religion,  and  the  laws  of  the  realm,  by 
reading  the  declaration.  They  presented  their  petition  in  person  to 
the  King,  who  treated  it  and  them  with  insolence  and  wrath. 

"  Tiic  king,  say.s  Kcnnct,  was  not  contented  to  have  this  declaration  published  iu 
the  usual  niiinncr,  but  he  was  resolved  to  have  it  solemnly  read  in  all  churches  as  the 

1  1  Miiciiulny,  (Iliin.frr'n  VA.)  450-8.  -  1  M:i(;iulny,  ilA\-  11  St.  Tr.  403. 

•  2  Cumpbciru  Ju.tticcH,  87.  ''  Sec  2  lii-cwster's  Newton,  108. 


THE   SEVEN  BISHOPS.  33 

political  gospel  of  liis  reign.  The  bishops  and  clergy  were,  of  all  others  the  most 
averse  to  the  subject-matter  of  the  declaration,  as  being  most  sensible  of  the  ill  design 
and  ill  effects  of  it ;  and  therefore  the  court  seemed  the  more  willing  to  mortify  these 
their  enemies,  and  make  them  become  accessory  to  their  own  ruin ;  and  even  to  eat 
their  own  dung,  as  fother  Petre  proudly  threatened,  and  therefore  this  order  of  coim- 
cil  was  made  and  published."  ^ 

The  petition  was  printed  and  published  with  great  rapidity,  the 
bishops  were  seized,  thrown  into  the  Tower,  and  prosecuted  in  the 
court  for  a  "false,  feigned,  malicious,  pernicious,  and  seditious" 
libel. 

Judge  AUybone  thus  addressed  the  Jury. 

"  And  I  think,  in  the  first  place,  that  no  man  can  take  upon  him  to  write  against  the 
actual  exercise  of  the  government,  unless  lie  have  leave  from  tlie  government,  but  he 
makes  a  libel,  be  what  he  writes  true  or  false ;  for  if  once  we  come  to  impeach  the 
government  by  way  of  argument,  it  is  the  argument  that  makes  it  the  government,  or 
not  the  government.  So  that  I  lay  down  that,  in  the  first  place,  the  government  ought 
not  to  be  biipeached  hy  argument,  nor  the  exercise  of  the  government  shaken  by  argu- 
ment; because  I  can  manage  a  proposition,  in  itself  doubtful,  with  a  better  pen  than 
another  man  ;  this,  say  I,  is  a  libel. 

"  Then  I  lay  down  this  for  my  next  position,  that  no  private  man  can  take  upon  him  to 
write  concerning  the  government  at  all ;  for  tvhat  has  any  private  man  to  do  with  the 
govei'nment,  if  his  interest  be  not  stirred  or  shaken  ?  It  is  the  business  of  the  govern- 
ment to  manage  matters  relating  to  the  government;  it  is  the  busings  of  subjects 
to  mind  only  their  own  properties  and  interests.  If  my  interest  is  not  shaken,  ivhat  have 
I  to  do  with  matters  of  government  ?  They  are  not  within  my  sphere.  If  the  govern- 
ment does  come  to  shake  my  particular  interest,  the  law  is  open  for  me,  and  I  may 
redress  myself  by  law ;  and  when  I  intrude  myself  into  other  men's  business  that  does 
not  concern  my  particular  interest,  I  am  a  libeller. 

"  These  I  have  laid  down  for  plain  propositions  ;  now,  then,  let  us  consider  further, 
■whether,  if  I  will  take  upon  me  to  contradict  the  government,  any  specious  pretence 
that  I  shall  put  upon  it,  shall  dress  it  up  in  another  form  and  give  it  a  better  denomi- 
nation ?  And  truly  I  think  it  is  the  worse,  because  it'comes  in  a  better  dress  ;  for  by 
that  rule,  every  man  that  can  put  on  a  good  vizard,  may  be  as  mischievous  as  he  will, 
to  the  government  at  the  bottom,  so  that,  whether  it  be  in  the  form  of  a  supplication,  or 
an  address,  or  a  petition,  if  it  be  what  it  ought  not  to  be,  let  us  call  it  by  its  true  name, 
and  give  it  its  right  denomination  —  it  is  a  libel." 

"  The  government  here  has  published  such  a  declaration  as  this  that  has  been  read, 
relating  to  matters  of  government;  and  shall,  or  ought  anybody  to  come  and  impeach 
thai  as  illegal,  which  the  government  has  done  ?  Truly,  in  my  opinion,  I  do  not  think 
he  should,  or  ought ;  for  by  this  rule  may  every  act  of  the  government  be  shaken, 
when  tliere  is  not  a  parliament  de  facto  sitting. 

"  "\Mien  the  house  of  lords  and  commons  are  in  being,  it  is  a  proper  Avay  of  ap[)ly  ing  to 
the  king;  there  is  all  the  openness  in  the  world  for  those  that  are  members  of  parlia- 
ment, to  make  what  addresses  they  please  to  the  government,  for  the  i-ectifying,  alter- 
ing, regulating,  and  making  of  what  law  they  please;  but  if  eveiy  private  man  shall 
come  and  interpose  his  advice,  I  think  there  can  never  be  an  end  of  advising  the 
government. 

1  12  St.  Tr.  239. 


34  CORRUPTION   OF   THE   JUDICIARY. 

"We  are  not  to  measure  tilings  from  any  truth  they  have  in  thcmridves,  hut  from  that 
aspect  they  have  upon  the  government;  for  there  may  be  every  tittle  of  a  libel  true,  and 
yet  it  may  be  a  libel  still;  so  that  I  put  no  great  stress  upon  that  objection,  that  tlie 
matter  of  it  is  not  false  ;  and  for  sedition,  it  is  that  which  every  libel  carries  in  itself; 
and  as  every  trespass  implies  vi  and  armis,  so  every  libel  against  the  government  carries 
in  it  sedition,  and  all  the  other  epithets  that  are  in  the  information.  This  is  my  opin- 
ion as  to  law  in  general.  I  will  not  debate  the  prerogatives  of  the  king,  nor  the  privi- 
leges of  the  subject ;  but  as  this  fact  is,  I  think  these  venerable  bishops  did  meddle 
•with  that  which  did  not  belong  to  them ;  they  took  upon  them,  in  a  petitionary,  to  con- 
tradict the  actual  exercise  of  the  government,  which  I  think  no  particular  persons,  or 
singular  body,  may  do."^ 

Listen,  Gentlemen  of  the  Jury,  to  the  words  of  Attorney- General 
Powis :  — 

"  And  I  cannot  omit  here  to  take  notice,  that  there  is  not  any  one  thing  that  the  laic  is 
more  jealous  of  or  does  more  carefully  provide  for  the  prevention  and  punishment  of, 
than  all  accusations  and  arraignments  of  the  government.  No  man  is  allowed  to  accuse 
even  the  most  iiferior  magistrate  of  any  misbehavior  in  his  office,  unless  it  be  in  a  legal 
course,  though  the  fact  is  true.  No  man  may  say  of  a  justice  of  the  peace,  to  his  face, 
that  he  is  unjust  in  his  office.  A'o  man  may  tell  a  Judge,  either  by  ivord  or  j^etition,  you 
have  given  an  unjust,  or  an  ill  judgment,  and  I  will  not  obey  it;  it  is  against  the  rules 
and  law  of  the  kingdom,  or  the  like.  No  man  may  say  of  the  great  men  of  the  nation, 
much  less  of  the  great  officers  of  the  kingdom,  that  they  do  act  unreasonably  or  un- 
justly, or  the  like ;  least  of  all  may  any  man  say  any  such  thing  of  the  king ;  for  these 
matters  tend  to  possess  the  people,  that  the  government  is  ill  administered ;  and  the 
consequence  of  that  is,  to  set  them  upon  desiring  a  reformation ;  and  what  that  tends 
to,  and  will  end  in,  we  have  all  had  a  sad  and  too  dear  bought  experience."^ 

Hearken  to  the  law  of  Solicitor-General  Williams :  — 

"  If  any  person  have  slandered  the  government  in  writing,  you  are  not  to  examine  the 
truth  of  that  fact  in  such  writing,  but  the  slander  which  it  imports  to  the  king  or  gov- 
ernment ;  and  be  it  never  so  true,  yet  if  slanderous  to  the  king  or  the  government,  it  is 
a  libel  and  to  be  punished;  in  that  case,  the  right  or  wrong  is  not  to  he  examined,  or  if 
what,  was  done  by  the  government  be  legal,  or  no;  but  whether  the  party  have  done  such 
an  act.  If  the  king  have  a  power  (for  still  I  keep  to  that),  to  issue  forth  proclamations 
to  his  subjects,  and  to  make  orders  and  constitutions  in  matters  ecclesiastical,  if  he  do 
issue  forth  his  proclamation,  and  make  an  order  upon  the  matters  Avithin  his  power  and 
prerogative  ;  and  if  any  one  would  come  and  bring  that  power  in  (picstion  otherwise 
than  in  jiarliament,  tliat  the  matter  of  that  proclamation  be  not  legal,  I  say  that  is  sedi- 
tion, and  you  arc  not  to  examine  the  legality  or  illegality  of  the  order  or  proclamation, 
but  the  slander  and  rcllcctioii  uj)on  the  government." 

"  If  a  ])erson  do  a  thing  thai  is  libellous,  you  shall  not  examine  the  fact,  but  the  con- 
Boqucnce  of  it ;  whether  it  tended  to  stir  up  sedition  against  the  public,  or  to  stir  up 
Btrife  between  man  and  man,  in  the  case  of  private  persons;  as  if  a  man  should  say 
of  a  judge,  lit;  has  taken  a  brilic,  and  I  will  j)rove  it. 

"They  tell  the  king  it  is  inconsistent  with  their  honor,  prudence,  and  conscience,  to 
do  wliat  he  would  have  them  to  ilo.  And  if  these  things  be  not  reOective  ujjon  the 
king  and  go\eriiiiieiil,  I  kimw  not  what  is. 

1   12  .St.  Tr.  -ri7,  428,  429.  '^  12  St.  Tr.  281. 


HORNE    TOOKE.  35 

"I'll  tell  you  what  they  should  have  done,  Sir.  If  they  were  commanded  to  do  any 
thing  against  tlieir  consciences,  they  should  have  acquiesced  till  the  meeting  of  the  parUa- 
ment.     [At  which  some  people  in  tlie  court  hissed.] 

'•'•  If  the  lcin(j  will  impose  upon  a  man  wliat  he  cannot  do,  he  must  acquiesce ;  but  shall  he 
come  and  lly  in  the  face  of  his  jirince  ?  Shall  he  say  it  is  illegal  V  and  the  prince  acts 
iagainst  ])ruilence,  honor,  or  conscience,  and  throw  dirt  in  the  king's  face?  Sure  that 
is  not  perniitlcd  ;  that  is  libelling  wilh  a  witness."^ 

Here,  however,  there  was  a  Jury  —  the  seven  bishops  were  acquit- 
ted amid  the  tumultuous  huzzas  of  the  people,  who  crowded  all  the 
open  spaces  in  the  neighborhood  of  Westminster  Hall,  and  rent  the 
air  with  thek  shouts,  which  even  the  soldiers  repeated.  ^ 

Two  of  the  Judges — Sir  John  Powell  and  Sir  Richard 'HoUoway 
—  stood  out  for  law  and  justice,  declaring  such  a  petition  to  the 
King  was  not  a  libel.     They  were  presently  thrust  from  their  offices. 

Gentlemen  of  the  Jury,  the  Stuarts  soon  filled  up  the  measure  of 
their  time  as  of  their  iniquity,  and  were  hustled  from  the  throne  of 
England.  But,  alas,  I  shall  presently  remind  you  of  some  examples 
of  this  tyranny  in  New  England  itself.  Now  I  shall  cite  a  few  simi- 
lar cases  of  oppression  which  happened  in  the  reign  of  the  last  King 
of  New  England. 

I  just  now  spoke  of  Edmund  Thurlow,  showing  what  his  character 
was  and  by  what  means  he  gained  his  various  offices,  ministerial  and 
judicial.  I  will  next  show  you  one  instance  more  of  the  evil  which 
comes  from  putting  in  office  such  men  as  are  nothitig  but  steps 
whereon  despotism  mounts  up  to  its  bad  eminence. 

10.  On  the  8th  of  June,  1775,  —  it  will  be  eighty  years  on  the  first 
anniversary  of  Judge  Curtis's  charge  to  the  grand-jury,  —  John  Home, 
better  known  by  his  subsequent  name  John  Home  Tooke,  formerly  a 
clergyman  but  then  a  scholarly  man  devoting  himself  to  letters  and 
politics  —  published  the  following  notice  in  the  Morning  Chronicle 
and  London  Advertiser^  as  well  as  other  newspapers  :  — 

"King's- Arms  Tavern,  Cornhill,  June  7,  1775.  At  a  special  meeting  this  day  of 
several  members  of  the  Constitutional  Society,  during  an  adjournment,  a  gentleman 
proposed  that  a  subscription  should  be  Immediately  entered  into  by  such  of  the  mem- 
bers present  who  might  approve  the  purpose,  for  raising  the  sum  of  £100,  to  be.  ap- 
plied to  the  relief  of  the  widows,  orphans,  and  aged  parents  of  our  beloved  American 
fellow-subjects,  who,  faithful  to  the  character  of  Englishmen,  prefen-ing  death  to 
slavery,  were  for  that  reason  only  inhumanly  murdered  by  the  king's  troojjs  at  or  near 
Lexington  and  Concord,  in  the  province  of  Massachusetts,  on  the  19th  of  last  April; 
which  sum  being  Immediately  collected,  It  was  thereupon  resolved  that  Mr.  Ilorne  do 
pay  to-morrow  into  the  hands  of  Mess.  Brownes  and  CoUInson,  on  account  of  Dr. 
Franklin,  the  said  sum  of  100/.  and  that  Dr.  Franklin  be  i-equested  to  apply  the  same 
to  the  above-mentioned  purpose." 

1  12  St.  Tr.  415,  416,  417.  2  See  2  Campbell's  Justices,  95. 


36  CORRUPTION'   OF   THE   JUDICIARY. 

At  that  time    Thurlow,  whom  I  introduced  to  you  a  little  while 
ago,  was   Attorney-General,  looking  for  further  promotion  from  the 
Tory  Government  of  Lord   North.     Mansfield   was  Chief  Justice,  a 
man  of  great  ability,  who  has  done  so  much  to  reform  the  English 
law,  but  whose   hostility   to    America   was   only   surpassed    by   the 
hatred  which  he  bore  to  all  freedom  of  speech  and  the  rights  of  the 
Jury.     The  Government  was  eager  to  crush  the  liberty  of  the  Ameri- 
can Colonies.     But  this  was  a  difficult  matter,  for  in  England  itself 
there  was  a  powerful  party  friendly  to  America,  who  took  our  side  in 
the  struggle  for  liberty.     The  city  of  London,  however,  was  hostile  to 
us,  wishing  to  destroy  our  merchants  and  manufacturers,  who  dis- 
turbed the   monopoly  of  that   commercial   metropolis.     The   govern- 
ment thought  it  necessary  to  punish  any  man  who  ventured  to  oppose 
their  tyranny  and   sympathize   with    America.     Accordingly  it  was 
determined  that  INIr.  Home  should  be  brought  to  trial.     But  as  public 
opinion,  stimulated  by  Erskine,  Camden  and  others,  favored  the  rights 
of  the  Jury,  it  seems  to   have  been  thought  dangerous  to  trust  the 
case  to  a  Grand-Jury.     Perhaps  the  Judge  had  no  brother-in-law  to  put 
on  it,  or  the  Attorney-General  —  though  famous  also  for  his  profanity, 
—  doubted  that  any  swea7'ing-  of  his  would  insure  a  bill;  nay,  perhaps 
he  did  not  venture  to  "  bet  ten  dollars  that  I  w411  get  an  indictment 
against  him."     Be  that  as  it  may,  the   Attorney- General  dispensed 
with  the  services  of  the  Grand-.Jury  and  filed  an  information  e.v  officio 
against  Mr.  Home,  therein  styling  him  a  "  wicked,  malicious,  sedi- 
tious, and  ill-disposed  person;"  charging  him,  by  that  advertisement, 
with  "  wickedly,  maliciously,  and    seditiously  intending,    designing, 
and  venturing  to  stir  up  and  excite  discontents  and  sedition  ; "  "  to 
cause  it  to  be  believed  that  divers  of  his  Majesty's  innocent  and 
deserving  subjects  had  been  inhumanly  murdered  by  .  .  .  his  Majes- 
ty's troops ;  and  unlawfully  and  wickedly  to  encourage  his  Majesty's 
subjects  in  the  said   Province  of  Massachusetts  to  resist  and  oppose 
his    Majesty's   Government."     He  said   the   advertisement  was    "  a 
false,  wicked,  malicious,  scandalous,  and  s'editious  libel ;"  "  full  of  rib- 
aldry, Billingsgate,  scurrility,  balderdash,  and  impudence;"  "wicked 
is  a  term  too  high  for  this  advertisement;"  "its  impudence  disarmed 
its   wickedness."     In    short,   Mr.    Home  was  accused  of  "  resisting 
an  ollicer,"  obstructing  the  execution  of  the  "  process  "  whereby  the 
American  Provinces  were  to  be  made  the  slave  colonies  of  a  metro- 
|)olitan  despotism.     The  usual  charge  of  doing  all  this  by  "force 
and  arms,"  was  of  course  thrown   in.     The  ])ublication  of  the  adver- 
ti.s(?rnent  was  declarrd  a  "crime  of  such  heinousness  and  of  such  a 
Hize  as   fairly  callfd   for  the   highest  res(>ntment  which   any  court  of 
justice  has  Ihonght  proper  to  use  with  respect  to  crimes  of  this  denom- 
ination ;"  "  a  lilxl  such  (hat  it  is  impossible  by  any  artifice  to  aggra- 


IIORNE    TOOKE.  37 

vate  it : "  "It  will  be  totally  impossible  for  the  imagination  of  any 
man,  however  shrewd,  to  state  a  libel  more  scandalous  and  base  in 
the  fact  imputed,  more  malignant  and  hostile  to  the  country  in  which 
the  libeller  is  born,  more  dangerous  in  the  example  if  it  were  suffered 
to  pass  unpunished,  than  this : "  "  It  is  in  language  addressed  to  the 
lowest  and  most  miserable  mortals,  .  .  .  it  is  addressed  to  the  lowest 
of  the  mob,  and  the  bulk  of  the  people,  who  it  is  fit  should  be  otherwise 
taught,  who  it  is  fit  should  be  otherwise  governed  in  this  country." 

Mr.  Home  was  brought  to  trial  on  the  4th  of  July,  1777.  He  de- 
fended himself,  but  though  a  vigorous  writer,  he  was  not  a  good 
speaker,  and  was  in  a  strange  place,  while  "  Thurlow  fought  on  his 
own  dunghill,"  says  Lord  Campbell,  "  and  throughout  the  whole  day 
had  the  advantage  over  him."  There  was  a  special  jury  packed  for  the 
purpose  by  the  hireling  sheriff,  —  a  "  London  jury"  famous  for  corrup- 
tion,—  a  tyrannical  and  powerful  judge,  ready  to  turn  every  weapon 
of  the  court  against  the  defendant  and  to  construct  law  against  the 
liberty  of  speech.     Of  course  Mr.  Home  was  convicted. 

But  how  should  he  be  punished  ?     Thurlow  determined. 

"My  Lords,  the  punishments  to  be  inflicted  upon  misdemeanors  of  this  sort,  have 
usually  been  of  three  different  kinds ;  fine,  corporal  punishment  by  imprisonment,  and 
infamy  by  the  judgment  of  the  pillory.  With  regard  to  the  Jine^  it  is  impossible  for 
justice  to  make  this  sort  of  punishment,  however  the  infamy  will  always  fall  upon  the 
offender ;  because  it  is  well  known,  that  men  who  have  more  wealth,  who  have  better 
and  more  respectful  situations  and  reputations  to  be  watchful  over,  employ  men  in  des- 
perate situations  both  of  circumstances  and  characters,  in  order  to  do  that  which  serves 
their  party  purposes ;  and  when  the  punishment  comes  to  be  inflicted,  this  court  must 
have  regard  to  the  apparent  situation  and  circumstances  of  the  man  employed,  that  is, 
of  the  man  convicted,  with  regard  to  the  punishment. 

"  AVith  regard  to  imprisonment,  that  is  a  species  of  pvuiishment  not  to  be  considered 
alike  in  all  cases,  but  .  .  .  ,  that  it  would  be  proper  for  the  judgment  of  the  court 
to  state  circumstances  which  will  make  the  imprisonment  fall  lighter  or  heavier,  .  .  . 
that  would  be  proper,  if  I  had  not  been  spared  all  trouble  upon  that  account,  by  hear- 
ing it  solemnly  avowed  ...  by  the  defendant  himself,  that  imprisonment  was  no  kind 
of  inconvenience  to  him ;  for  that'  certain  employments,  .  .  .  would  occasion  his  con- 
finement in  so  close  a  way,  that  it  was  mere  matter  of  cii-cumstance  whether  it  hap- 
pened in  one  place  or  another ;  and  that  the  longest  imprisonment  which  this  court 
could  inflict  for  punishment,  was  not  beyond  the  reach  of  accommodation  which  those 
occasions  rendered  necessary  to  him.  In  this  respect,  therefore,  imprisonment  is  not 
only,  .  .  .  not  an  adequate  punishment  to  the  offence,  but  the  public  are  told,  .  .  . 
that  it  will  be  no  i^uniahment. 

"  I  stated  in  the  third  place  to  your  Lordships,  tliejnUory  to  have  been  the  usual  pu7iish- 
ment  for  this  species  of  offence.  I  apprehend  it  to  have  been  so,  in  this  case,  for  above 
two  hundred  years  before  the  time  when  prosecutions  grew  rank  in  the  Stai'-Cham- 
ber  ....  the  punishment  of  the  pillory  was  inflicted,  not  only  during  the  time  that 
such  prosecutions  were  rank  in  the  Star-Chambcr,  but  it  also  continued  to  be  inflicted 
upon  this  sort  of  crime,  and  that  by  the  best  authority,  after  the  time  of  the  abolishing 
the  Star-Chamber,  after  the  time  of  the  Kevolution,  and  while  my  Lord  Chief  Justice 
Holt  sat  in  this  court. 

4 


38  CORRUPTION    OF   THE   JUDICIARY. 

"  I  -would  desire  no  better,  uo  more  pointed,  nor  any  more  applicable  argument 
than  Tvhat  that  great  chief  justice  used,  when  it  was  contended  before  hiiu  that 
an  abuse  upon  government,  upon  the  administration  of  several  parts  of  government, 
amounted  to  nothing,  because  there  was  no  abuse  upon  any  particular  man.  That 
great  chief  justice  said,  they  amounted  to  much  more ;  they  are  an  abuse  upon  all  men. 
Government  cannot  exist,  if  the  law  cannot  restrain  that  sort  of  abuse.  Government 
cannot  exist,  unless  .  .  .  the  full  punishment  is  inflicted  which  the  most  approved 
times  have  given  to  offences  of  much  less  denomination  than  these,  of  much  less.  I 
am  sure  it  cannot  be  shown,  that  in  any  one  of  the  cases  that  were  punished  in  that 
manner,  the  aggravations  of  any  one  of  those  offences  were  any  degree  adequate  to 
those  which  are  presented  to  your  Lordship  now.  If  offences  were  so  punished  then, 
which  are  not  so  punished  now,  they  lose  that  expiation  which  the  wisdom  of  those 
ages  thought  proper  to  hold  out  to  the  public,  as  a  restraint  from  such  offences  being 
committed  again. 

"I  am  to  judge  of  crimes  in  order  to  the  prosecution  ;  your  lordship  is  to  judge  of 
them  ultimately  for  punishment.  I  should  have  been  extremely  sorry,  if  I  had  been  in- 
duced by  any  consideration  whatever,  to  have  brought  a  crime  of  the  magnitude  which 
this  was  (of  the  magnitude  which  this  was  when  I  first  stated  it)  into  a  court  of  justice, 
if  I  had  not  had  it  in  my  contemplation  also  that  it  would  meet  with  an  adequate 
restraint,  which  I  never  thought  would  be  done  without  affixing  to  it  the  judgment  of 
the  jnllory ;  I  should  have  been  very  sorry  to  have  brought  this  man  here,  after  all  the 
aggravations  that  he  has  superinduced  upon  the  oirence  itself,  if  I  had  not  been  per- 
suaded that  those  aggravations  would  have  induced  the  judgment  of  the  pillorg."  ^ 

But  INIansfield  thought  otherwise,  and  punished  him  with  a  fine  of 
<£200  and  imprisonment  for  twelve  months.^ 

"  Thus,"  says  Lord  Brougham,  "  a  bold  and  just  denunciation  of  the 
attacks  made  upon  our  American  Brethren,  which  nowadays  would 
rank  among  the  very  mildest  and  tamest  effusions  of  the  periodical 
press,  condemned  him  to  prison  for  twelve  months."  ^  * 

Thurlow  was  a  man  of  low  intellect,  of  a  fierce  countenance,  a 
saucy,  swaggering,  insolent  manner,  debauched  in  his  morals  beyond 
the  grossness  of  that  indecent  age,  —  ostentatiously  living  in  public 
concubinage,  —  a  notorious  swearer  in  public  and  private.  But  he 
knew  no  law  above  the  will  of  the  hand  that  fed  and  could  advance 
him,  no  justice  which  might  check  the  insolence  of  power.  And  in 
less  than  a  month  after  Mr.  Home  was  sent  to  jail,  Thurlow  was 
made  piiord  Chancellor  of  England,  and  sat  on  the  woolsack  in  the 
House  of  Lords.  His  chief  panegyrist  can  only  say,  "in  worse 
times  there  have  been  worse  chancellors."  "  But  an  age  of  comparative 
freedom  and  refinement  lias  rarely  exhibited  one  who  so  ill  under- 
stood, or  at  least  so  ill  discharged,  the  functions  of  a  statesman  and 
legislator." 

I  will  enrich  this  part  of  my  argument  with  an  example  of  the 
opinions  of  this  Judge,  which  would  endear  him  to  the  present  ad- 

'  20  St.  Tr.  780-783.  =  20  St.  Tr.  C51  ;  5  Campbell,  415. 

'  Statesmen,  2  Scries,  109. 


CONSTKUCTIYE    CRIME.  39 

ministration  in  America,  and  entitle  him  to  a  high  place  among 
southern  politicians.  In  1788  a  bill  was  brought  into  Parliament  to 
mitigate  the  horrors  of  the  African  slave-trade.  The  Lord  Chan- 
cellor, Thurlow,  opposed  it  and  said  :  — 

"  It  api)ears  that  the  French  have  ofTered  premiums  to  encourage  the  African  [slave] 
trade,  and  that  they  have  succeeded.  Tlie  natural  presumption  therefore  is,  that  ?re 
ought  to  do  the  same.  For  my  part,  my  Lords,  I  have  no  scruple  to  say  that  if  the  '  five 
days'  fit  of  philanthropy '  [the  attempt  to  abolish  the  slave-trade]  which  has  just  sprung 
up,  and  which  has  slept  for  twenty  years  together,  were  allowed  to  sleep  one  summer 
longer,  it  Avould  appear  to  me  rather  more  wise  than  thus  to  take  up  a  subject  piece- 
meal, which  it  has  been  publicly  declared  ought  not  to  be  agitated  at  all  till  next  ses- 
sion of  Parliament.  Perhaps,  by  such  imprudence,  the  slaves  themselves  may  be 
prompted  by  their  own  authority,  to  proceed  at  once  to  a  '  total  and  immediate  abolition 
of  the  trade.'  One  witness  has  come  to  your  Lordship's  bar  with  a  face  of  woe  — his 
eyes  full  of  tears,  and  his  countenance  fraught  with  horror,  and  said,  '  M//  Lords,  1  am 
ruined  if  you  pass  this  bill!  I  have  risked  £30,000  on  the  trade  this  year  !  It  is  all  1 
have  ieen  aide  to  gain  by  my  industry,  and  if  I  lose  it  I  must  go  to  the  hospital!'  I  de- 
sire of  you  to  think  of  such  things,  my  Lords,  in  your  humane  phrensy,  and  to  show  some 
humanity  to  the  whiles  as  well  as  to  the  negroes."  ^ 

One  measure  of  tyranny  in  the  hands  of  such  Judges  is  Construc- 
tive Crime,  a  crime  which  the  revengeful,  or  the  purchased  judge  dis- 
tils out  of  an  honest  or  a  doubtful  deed,  in  the  alembic  he  has  made 
out  of  the  law  broken  up  end  recast  by  him  for  that  purpose,  twisted, 
drawn  out,  and  coiled  up  in  serpentine  and  labyrinthine  folds.  For 
as  the  sweet  juices  of  the  grape,  the  peach,  the  apple,  pear,  or  plumb 
may  be  fermented,  and  then  distilled  into  the  most  deadly  intoxicat- 
ing draught  to  madden  man  and  infuriate  woman,  so  by  the  sophis- 
try of  a  State's  Attorney  and  a  Court  Judge,  well  trained  for  this  work, 
out  of  innocent  actions,  and  honest,  manly  speech,  the  most  ghastly 
crimes  can  be  extorted,  and  then  the  "  leprous  distilment"  be  poured 
upon  the  innocent  victim, 

"  And  a  most  instant  tetter  barks  about, 
Most  lazar-like,  with  vile  and  loathsome  crust, 
All  his  smooth  body  ! " 

Here  is  an  example.  In  1668  some  London  apprentices  com- 
mitted a  riot  by  pulling  down  some  houses  of  ill-fame  in  Moorfields, 
which  had  become  a  nuisance  to  the  neighborhood ;  they  shouted 
"  Down  with  Bawdy  Houses."  Judge  Kelyng  had  them  indicted  for 
High  Treason.  He  said  it  was  "  an  accroachment  of  royal  author- 
ity." It  was  "  levying  war."  He  thus  laid  down  the  law.  "  The 
prisoners  are  indicted  for  levying  war  against  the  King.     By  levying 

1  5  Campbell,  460  ;  27  Pari.  Hist.  G38. 


40  CORRUPTION   OF   THE   JUDICIARY. 

war  is  not  only  meant  when  a  body  is  gathered  together  as  an  army, 
but  if  a  company  of  people  luill  go  about  any  public  rcfor?nation,  this 
is  high  treason.  These  people  do  pretend  their  design  was  against 
brothels ;  now  let  men  to  go  about  to  pull  down  brothels,  with  a  cap- 
tain [an  apprentice  '  walked  about  with  a  green  apron  on  a  pole "] 
and  an  ensign  and  weapons,  —  if  this  thing  be  endured,  ivho  is  safe? 
It  is  high  treason  because  it  doth  betray  the  peace  of  the  nation,  and 
every  subject  is  as  much  ivronged  as  the  King;  for  if  every  man  may 
reform  what  he  will,  no  man  is  safe ;  therefore  the  thing  is  of  desper- 
ate consequence,  and  we  must  make  this  for  a  public  example. 
There  is  reason  why  we  should  be  very  cautious ;  we  are  but  recently 
delivered  from  rebellion  [Charles  I.  had  been  executed  nineteen  years 
before,  and  his  son  had  been  in  peaceable  possession  of  the  throne  for 
eight  years],  and  we  know  that  that  rebellion  first  began  under  the 
pretence  of  religion  and  the  law ;  for  the  Devil  hath  always  this  viz- 
ard upon  it.  We  have  great  reason  to  be  very  wary  that  we  fall  not 
again  into  the  same  error.  Apprentices  for  the  future  shall  not  go  on 
in  this  manner.  It  is  proved  that  Beasly  went  as  their  captain  with 
his  sword,  and  flourished  it  over  his  head  [this  was  the  "  weapons,"] 
and  that  Messenger  walked  about  Moorfields  with  a  green  apron  on 
the  top  of  a  pole  [this  was  the  "  ensign  "].  What  was  done  by  one, 
was  done  by  all ;  in  high  treason  all  concerned  are  principals."  ^ 

Thereupon  thirteen  apprentices  who  had  been  concerned  in  a  riot 
were  found  guilty  of  high  treason,  sentenced,  and  four  hanged.  All  of 
the  eleven  Judges  —  Twysden  was  one  of  them  —  concurred  in  the  sen- 
tence, except  Sir  Matthew  Hale.  He  declared  there  w^as  no  treason 
committed  ;  there  was  "  but  an  unruly  company  of  apprentices."  ^ 

This  same  Judge  Kelyng,  singularly  thick-headed  and  ridiculous, 
loved  to  construct  crimes  where  the  law  made  none.  Thus  he  de- 
clares, "in  cases  of  high  treason,  if  any  one  do  any  thing  by  which  he 
showeth  his  liking  and  approbation  to  the  Traitorous  Design,  this  is  in 
him  High  Treason.  For  all  are  Principals  in  High  Treason,  who 
contribute  towards  it  by  Action  or  Approbation."  ^  He  held  it  was 
an  overt  act  of  treason  to  print  a  "  treasonable  proposition,"  such  as 
this,  "  The  execution  of  Judgment  and  Justice  is  as  well  the  people's 
as  tin;  magistrates'  duty,  and  if  the  magistrates  pervert  Judgment,  the 
people  are  bound  by  the  law  of  God  to  execute  judgment  without 
thcni  ;iii(l  upon  Ihcni."'*  So  Ihc  printer  of  the  book,  containing  the 
"  treaH()nal)l(!  |)r{)j)()siti()n,"  was  executed.  A  man,  by  name  Axtell, 
who  coirunandcd  Ihe  guards  wliirh  attended  at  the  trial  and  execu- 
tion of  Charles  I.,  was  brought  to  trial  for  treason.     He  contended 

'  1  Cinipljell's  Justices, -101-5;  Kcljiig's  Reports,  70.      -  G  St.  Tr.  879,  note  911. 
»  Kelyng's  llcports,  12.  •*  Jbid.  22. 


ILLEGAL   TORTURE.  41 

that  he  acted  as  a  soldier  by  the  command  of  his  superior  officer, 
whom  he  must  obey,  or  die.  But  it  was  resolved  that  "that  was  no 
excuse,  for  his  superior  was  a  Traitor  and  all  that  joined  with  him  in 
that  act  were  Traitors,  and  did  by  that  approve  the  Treason,  and 
\yhen  the  command  is  Traitorous,  then  the  Obedience  to  that  Com- 
mand is  also  Traitorous."  So  Axtell  must  die.  The  same  rule  of 
course  smote  at  the  head  of  any  private  soldier  who  served  in  the 
ranks ! ^ 

These  wicked  constructions  of  treason  by  the  court,  out  of  small 
offences  or  honest  actions,  continued  until  Mr.  Erskine  attacked  tliem 
with  his  Justice,  and  with  his  eloquence  exposed  them  to  the  indigna- 
tion of  mankind,  and  so  shamed  the  courts  into  humanity  and  com- 
mon sense.2  Yet  still  the  same  weapon  lies  hid  under  the  Judicial 
bench  as  vTeW  of  England  as  of  America,  whence  any  malignant  or 
purchased  Judge,  when  it  suits  his  personal  whim  or  public  ambition, 
•may  draw  it  forth,  and  smite  at  the  fortune,  the  reputation,  or  the  life 
of  any  innocent  man  he  has  a  private  grudge  against,  but  dares  not 
meet  in  open  day.     Of  this.  Gentlemen  of  the  Jury,  in  due  time. 

The  mass  of  men,  busy  with  their  honest  work,  are  not  aware  what 
power  is  left  in  the  hands  of  judges  —  wholly  irresponsible  to  the 
people ;  few  men  know  how  they  often  violate  the  laws  they  are 
nominally  set  to  administer.  Let  me  take  but  a  single  form  of  this 
judicial  iniquity  —  the  Use  of  Torture,  borrowing  my  examples  from 
the  history  of  our  mother  country. 

In  England  the  use  of  torture  has  never  been  conformable  either 
to  common  or  to  statute  law ;  but  how  often  has  it  been  practised  by 
a  corrupt  administration  and  wicked  judges!  In  1549  Lord  Sey- 
mour of  Sudley,  Admiral  of  England,  was  put  to  the  torture ;  ^  in 
1604  Guy  Fawkes  was  "  horribly  racked."  *  Peach  am  was  repeatedly 
put  to  torture  as  you  have  just  now  heard,  and  that  in  the  presence  of 
Lord  Bacon  himself  in  1614.^  Peacock  was  racked  in  1620,  Bacon 
and  Coke  both  signing  the  warrant  for  this  illegal  wickedness,  —  "  he 
deserveth  it  as  well  as  Peacham  did,"  said  the  Lord  Chancellor,  mak- 
ing his  own  "  ungodly  custom  "  stand  for  law.^  In  1627  the  Lord 
Deputy  of  Ireland  wanted  to  torture  two  priests,  and  Charles  I.  gave 
him  license,  the  privy  council  consenting  —  "  all  of  one  mind  that  he 
might  rack  the  priests  if  he  saw  fit,  and  hang  them  if  he  found  rea- 
son ! "  "     In  1628  the  judges  of  England  solemnly  decided  that  torture 

^  Kelyng's  Reports,  13.  =  See  his  Defence  of  Hardy,  24  St.  Tr.  877. 

3  See  2  St.  Tr.  774,  note.  *  1  Jardiue,  Crim.  Tr.  16.  ^  2  St.  Tr.  871. 

«  1  Jiirdine,  19.  '  Ibid. 

4* 


42  CORRUPTION   OF   THE   JUDICIARY. 

was  unlawful;  but  it  had  always  been  so,  — and  Yelverton,  one  of 
the  judges,  was  a  member  of  the  commission  which  stretched  Peachain 
on  the  rack.i  Yet,  spite  of  this  decision,  torture  still  held  its  old 
place,  and  a  warrant  from  the  year  1640  still  exists  for  inflicting  this 
illegal  atrocity  on  a  victim  of  the  court.^  Yet  even  so  late  as  1804, 
when  Thomas  Pictou,  governor  of  Trinidad,  put  a  woman  to  tortures 
of  the  most  cruel  character,  by  the  connivance  of  the  court  he  entirely 
escaped  from  all  judicial  punishment.^  Yes,  torture  was  long  con- 
tinued in  England  itself,  though  not  always  by  means  of  thumb- 
screws and  Scottish  boots  and  Spanish  racks ;  the  monstrous  chains, 
the  damp  cells,  the  perpetual  irritation  which  corrupt  servants  of  a 
despotic  court  tormented  their  victims  withal,  was  the  old  demon 
under  another  name.^  Nay,  within  a  few  months  the  newspapers 
furnish  us  with  examples  of  Americans  being  put  to  the*  torture  of 
the  lash  to  force  a  confession  of  their  alleged  crime  —  and  this  has 
been  done  by  the  power  which  this  court  has  long  been  so  zealous' 
to  support — the  Slave  Power  of  America. 
It  has  been  well  said  :  — 

"It  must  be  owned  that  the  Guards  and  Fences  of  the  law  have  not  always  proved  an 
effectual  security  for  the  subject.  The  Reader  will  .  .  .  find  many  Instances  wherein 
they  who  hold  the  sword  of  Justice  did  not  employ  it  as  they  ought  to  in  punishment 
of  Evil-Doers,  but  to  the  Oppression  and  Destruction  of  Men  more  righteous  than 
themselves.  Indeed  it  is  scarce  possible  to  frame  a  Body  of  Laws  which  a  tyrannical 
Prince,  influenced  by  wicked  Counsellors  and  corrupt  Judges,  may  not  be  able  to 
break  throu"-h.  .  .  .  The  Law  itself  is  a  dead  letter.  Judges  are  the  interpreters  of 
it,  and  if  they  prove  men  of  no  Conscience  nor  Integrity,  they  will  give  what  sense 
they  will  to  it,  however  different  from  the  true  one ;  and  when  they  are  supported  by 
sui)erior  authority,  will  for  a  while  prevail,  till  by  repeated  iniquities  they  grow  intoler- 
able and  throw  the  State  into  convulsions  which  may  at  last  end  in  their  own  ruin.  This 
shows  how  valuable  a  Blessing  is  an  upright  and  learned  Judge,  and  of  what  great 
concern  it  is  to  the  public  that  none  be  preferred  to  that  office  but  such  whose  Ability 
and  Integrity  may  be  safely  depended  on."  * 

Thus,  (Tcntlcmen  of  the  Jury,  is  it  that  judges  who  know  no  law 
but  the  will  of  "  the  hand  that  feeds  them,"  appointed  for  services 
rendered  to  the  enemies  of  mankind  and  looking  for  yet  higher 
rewards,  have  sought  to  establish  the  despotism  of  their  masters  on 
the  ruin  of  the  People.  But  the  destruction  of  obnoxious  individuals 
is  not  the  whole  of  their  enormity  ;  so  I  come  to  the  next  part  of  the 
subject. 

>  3  St.  Tr.  .371.     See  30  St.  Tr.  892. 

'  1  Jarditic,  '20.     See  Enilyn,  Preface  to  St.  Tr.  in  1  Ilargrave,  p.  iii. 

'  no  St.  Tr.  22.0.  *  See  case  of  Iluggins  in  17  St.  Tr.  297,  309. 

'  1  Ilarjirave's  St.  Tr.  G. 


IMPOSITIONS   AND    BENEVOLENCES.  43 

(III.)  The  next  step  is  for  such  judges  to  interpret,  wrest, 
and  pervert  the  laws  so  as  to  prepare  for  prospective  Acts  of 
Tyranny. 

Here,  Gentlemen  of  the  Jury,  I  shall  have  only  too  many  examples 
to  warn  you  with. 

Early  in  his  reign  James  I.  sought  to  lay  burthensome  taxes  on  the 
people  without  any  act  of  Parliament;  this  practice  was  continued 
by  his  successors. 

1.  In  1606  came  "  the  great  Case  of  Impositions,"  not  mentioned  in 
the  ordinary  histories  of  England.  The  king  assumed  the  right  to 
tax  the  nation  by  his  own  prerogative.  He  ordered  a  duty  of  five 
shillings  on  every  hundred  pounds  of  currants  imported  into  the  king- 
dom to  be  levied  in  addition  to  the  regular  duty  affixed  by  Act  of 
Parliament.  This  was  contrary  to  law,  nay,  to  the  Constitution  of 
England,  her  Magna  Charta  itself  provided  against  unparliamentary 
taxation.  Sir  John  Bates,  a  London  merchant,  refused  to  pay  the 
unlawful  duty,  and  was  prosecuted  by  information  in  the  Star-Cham- 
ber.  "  The  courts  of  justice,"  says  Mr.  Hallam,  "  did  not  consist  of 
men  conscientiously  impartial  between  the  king  and  the  subject ; 
some  corrupt  with  hopes  of  promotion,  many  more  fearful  of  removal, 
or  awe-struck  by  the  fear  of  power."  On  the  "  trial "  it  was  abun- 
dantly shown  that  the  king  had  no  right  to  levy  such  a  duty.  '*  The 
accomplished  but  too  pliant  judges,  and  those  indefatigable  hunters 
of  precedents  for  violations  of  constitutional  government,  the  great 
law-officers  of  the  crown,"  decided  against  the  laws,  and  Chief  Justice 
Fleming  maintained  that  the  king  might  lay  what  tax  he  pleased  on 
imported  goods !  The  corrupt  decision  settled  the  law  for  years  — 
and  gave  the  king  absolute  power  over  this  branch  of  the  revenue, 
involving  a  complete  destruction  of  the  liberty  of  the  people,  —  for 
the  Principle  would  carry  a  thousand  measures  on  its  back.^  The 
king  declared  Fleming  a  judge  to  his  "heart's  content."  Bacon's 
subserviency  did  not  pass  unrewarded.  Soon  after  James  issued  a 
decree  under  the  great  seal,  imposing  heavy  duties  on  almost  all  mer- 
chandise "  to  be  for  ever  hereafter  paid  to  the  king  and  his  suc- 
cessors, on  pain  of  his  displeasure."  ^  Thus  the  Measure  became  a 
Principle. 

2.  James,  wanting  funds,  demanded  of  his  subjects  forced  contribu- 
tions of  money, —  strangely  called  "Benevolences,"  though  there 
was  no  "  good-will "  on  either  side.  It  was  clearly  against  the 
fundamental  laws  of  the  kingdom.     Sir  Oliver  St.  John  refused  to 

1  2  St.  Tr.  371,  and  11  Hargrave,  29;  1  Campbell's  Justices,  204. 

■  1  Hallam,  231.     See  1  Pari.  Hist.  1030,  1132,  1150;  Baker's  Chrouicle,  430. 


44  CORRUPTION   OF   THE   JUDICIARY. 

pay  what  was  demanded  of  him,  and  wrote  a  letter  to  the  mayor 
of  Marlborough  against  the  illegal  exaction.  For  this  he  was  prose- 
cuted in  the  Star- Chamber  in  1615  by  Attorney- General  Bacon. 
The  court,  with  Lord  Chancellor  Ellesmere  at  its  head,  of  course 
decided  that  the  king  had  a  right  to  levy  Benevolences  at  pleasure. 
St.  John  was  fined  five  thousand  pounds,  and  punished  by  imprison- 
ment during  the  king's  pleasure.  This  decision  gave  the  king  abso- 
lute power  over  all  property  in  the  realm,  —  every  private  purse  was 
in  his  hands  1 1  With  such  a  court  the  king  might  well  say,  "  Wheare 
any  controversyes  arise,  my  Lordes  the  Judges  chosene  betwixte  me 
and  my  people  shall  discide  and  rulle  me."  ^ 

3.  Charles  I.  proceeded  in  the  steps  of  his  father :  he  levied  forced 
loans.  Thomas  Darnel  and  others  refused  to  pay,  and  were  put  in 
prison  on  a  General  Warrant  from  the  king  which  did  not  specify  the 
cause  of  commitment.  They  brought  their  writs  of  habeas  corpus, 
contending  that  their  confinement  was  illegal.  The  jnatter  came  to 
trial  in  1627.  Sir  Randolf  Crewe,  a  man  too  just  to  be  trusted  to  do 
the  iniquity  desired,  was  thrust  out  of  oflice,  and  Sir  Nicolas  Hyde 
appointed  chief  justice  in  his  place.  The  actual  question  was,  Has 
the  king  a  right  to  imprison  any  subject  forever  without  process  of 
law?  It  was  abundantly  shown  that  he  had  no  such  right.  But  the 
new  chief  justice,  put  in  power  to  oppress  the  people,  remembering 
the  hand  that  fed  him,  thus  decreed,  —  "  Mr.  Attorney  hath  told  you 
that  the  kitig-  hath  done  if,  and  ive  trnst  him  in  great  matters,  and  he  is 
bound  by  law,  and  he  bids  us  proceed  by  law;  .  .  .  and  we  make  no 
doubt  but  the  king,  if  you  look  to  him,  he  knowing  the  cause  why 
you  are  imprisoned,  he  ivill  have  mercy ;  but  that  we  believe  that  .  .  . 
he  cannot  deliver  you,  but  you  must  be  remanded"  Thus  the  judges 
gave  the  king  absolute  power  over  the  liberties  of  any  subject.^ 

But  the  matter  was  brought  up  in  Parliament  and  discussed  by 
men  of  a  different  temper,  who  frightened  the  judge  by  threats  of  im- 
peachment, and  forced  the  king  to  agree  to  the  Petition  of  Right 
designed  to  put  an  end  to  all  such  illegal  cruelty.  Before  Charles  I. 
would  sign  that  famous  bill,  he  asked  Judge  Hyde  if  it  would  restrain 
the  king  "  from  committing  or  restraining  a  subject  without  showing 
cause."  The  crafty  judge  answered,  "  Every  laiu,  after  it  is  made, 
hath  its  exposition,  ivhich  is  to  be  left  to  the  courts  of  justice  to  deter- 
mine ;  and  although  the  Petition  be  granted  there  is  no  fear  of  [such  a] 
conclusion  as  is  intimated  in  the  question  !  "  That  is,  the  court  will 
interpret  tiic  phiin  law  so  as  to  oppress  the  subject  and  please  the 

'  2  St.  Tr.  809  ;  1  Ilallarn,  i:>\  ;  2  Campbell,  201.  =  1   Pari.  Hist.  115G. 

3  3  St.  Tr.  1.     Sec  also  2  Pari.  Hist.  288;  1  llushworth  ami  1  ]\Irs.  ]\Iacaulay,  341. 


GENERAL   WARRANTS    AND    SIIIP-MONEY.  45  • 

king!  Aa  the  judges  had  promised  to  annul  the  law,  the  king  signed 
it.^  Charles  dissolved  Parliament  and  threw  into  jail  its  most  noble 
and  powerful  members  —  one  of  whom,  Eliot,  never  left  the  prison 
till  death  set  him  free.^  The  same  chief  justice  gave  an  extrajudicial 
opinion  justifying  the  illegal  seizure  of  the  members,  —  "that  a  parlia- 
ment man  committing  an  offence  against  the  King  in  Parliament  not 
in  a  parliamentary  course,  may  be  punished  after  the  Parliament  is 
ended  ;  "  "  that  by  false  slanders  to  bring  the  Lords  of  the  Council  and 
the  Judges,  not  in  a  parliamentary  way,  into  the  hatred  of  the  people 
and  the  government  into  contempt,  was  punishable  out  of  Parlia- 
ment, in  the  Star- Chamber,  as  an  offence  committed  in  Parliament 
beyond  the  office,  and  beside  the  duty  of  a  parliament  man."  ^  Thus 
the  judges  struck  down  freedom  of  speech  in  Parliament. 

4.  In  1634  Charles  I.  issued  a  writ  levying  ship-money,  so  calledyon 
some  seaport  towns,  without  act  of  Parliament.  London  and  some 
towns  remonstrated,  but  were  forced  to  submit,  all  the  courts  being 
against  them.  Chief  Justice  Finch,  "  a  servile  tool  of  the  despotic 
court,"  generalized  this  unlawful  tax,  extending  it  to  inland  towns  as 
well  as  seaboard,  to  all  the  kingdom.  All  landholders  were  to  be 
assessed  in  proportion  to  their  property,  and  the  tax,  if  not  voluntarily 
paid,  collected  by  force.  The  tax  was  unpopular,  and  clearly  against 
the  fundamental  law  of  the  kingdom.  But  if  the  government  could 
not  get  the  law  on  its  side  it  could  control  its  interpreters,  for  "  every 
law  hath  its  exposition."  So  the  Judges  of  Assize  were  ordered  in 
their  circuits  to  tell  the  people  to  comply  loith  the  order  and  pay  the 
money  I  The  King  got  an  extrajudicial  opinion  of  the  twelve  Judges 
delivered  irregularly,  out  of  court,  in  which  they  unanimously  declared 
that  in  time  of  danger  the  King'  might  levy  such  tax  as  he  saic  fit,  and, 
compel  juen  to  pay  it.  He  was  the  sole  judge  of  the  danger,  and  of 
the  amount  of  the  tax.  * 

John  Hampden  was  taxed  twenty  shillings  —  he  refused  to  pay, 
though  he  knew  well  the  fate  of  Richard  Chambers  a  few  years  be- 
fore. The  case  came  to  trial  in  1637,  in  the  Court  of  Exchequer 
before  Lord  Chancellor  Coventry,  a  base  creature,  mentioned  before. 
It  was  "  the  great  case  of  Ship-money."  The  ablest  lawyers  in  Eng- 
land showed  that  the  tax  was  contrary  to  Magna  Charta,  to  the  fun- 
damental laws  of  the  realm,  to  the  Petition  of  Right  and  to  the 
practice  of  the  kingdom.  Hampden  was  defeated.  Ten  out  of  the 
twelve  Judges  sided  with  the  King.  Croke  as  the  eleventh  had  made 
up  his  mind  to  do  the  same,  but  his  noble  wife  implored  him  not  to 


^  1  Campbell,  Jusfices,  311  ;  2  Pari.  Hist.  245,  350,  3  73,  408,  et  al.;  3  St.  Tr.  59. 
"  See  above,  p.  29.  ^1  Campbell's  Justices,  315. 

*  3  St.  Tr.  825.     See  tbe  opiuion  of  the  Judges  with  their  twelve  names,  844,  and 
note  t- 


46  CORRUPTION    OF   THE   JUDICIARY. 

sacrifice  his  conscience  for  fear  of  danger,  and  the  Woman,  as  it  so 
often  happens,  saved  the  man.^  Attorney-General  Banks  thus  set  forth 
the  opinion  of  the  Government,  and  the  consequent  "decision"  of 
the  Judges.  He  rested  the  right  of  levying  Ship-money  on  the 
"intrinsic,  absolute  authority  of  the  King."  There  was  no  Higher 
Law  in  Old  England  in  16341  Banks  said,  "  this  power  [of  arbitrary 
and  irresponsible  taxation]  is  innate  in  the  person  of  an  absolute 
King,  and  in  the  persons  of  the  Kings  of  England.  All- magistracy 
it  is  of  nature ;  and  obedience  and  subjection  [to]  it  is  of  nature. 
This  power  is  not  anyways  derived  from  the  people,  but  reserved 
unto  the  King  when  positive  laws  first  began.  For  the  King  of  Eng- 
land, he  is  an  absolute  monarch  ;  nothing  can  be  given  to  an  abso- 
lute prince  but  what  is  inherent  in  his  person.  He  can  do  no  wrong. 
He  is  the  sole  judge  and  we  ought  not  to  question  him,  whom  the 
law  trusts  we  ought  not  to  distrust."  "  The  Acts  of  Parliament  con- 
tain no  express  words  to  take  away  so  high  a  prerogative  ;  and  the 
King's  prerogative,  even  in  lesser  matters,  is  always  saved,  where 
express  words  do  not  restrain  it."  ^ 

It  required  six  months  of  judicial  labor  to  bring  forth  this  result, 
which  was  of  "infinite  disservice  to  the  crown."  Thereupon  Mr. 
Hallam  says :  — 

"  Those  who  had  trusted  to  the  faith  of  the  judges  were  undeceived  by  the  honest 
repentance  of  some,  and  looked  with  indignation  on  so  prostituted  a  crew.  That 
respect  for  courts  of  justice  which  the  happy  structure  of  our  Judicial  administration 
has  in  general  kept  inviolate,  was  exchanged  for  distrust,  contempt,  and  a  desire  of 
vengeance.  They  heard  the  speeches  of  some  of  the  Judges  with  more  displeasure 
than  even  their  final  decision.  Ship-money  was  held  lawful  by  Finch  and  several 
other  Judges,  not  on  the  authority  of  precedents  which  must  in  their  nature  have  some 
bounds,  but  on  principles  subversive  of  every  property  or  privilege  in  the  subject. 
Those  paramount  rights  of  monarchy,  to  which  they  appealed  to-day  in  justification  of 
Ship-money,  might  to-morrow  serve  to  supersede  other  laws,  and  maintain  more  exer- 
tions of  despotic  power.  It  was  manifest  by  the  whole  strain  of  the  court  lawyers 
that  no  limitations  on  the  King's  authority  could  exist  but  by  the  King's  suffer- 
ance. Tills  alarming  tenet,  long  bruited  among  the  churchmen  and  courtiers,  now 
resounded  in  the  halls  of  justice."^ 

Thus  by  the  purchased  vote  of  a  corrupt  Judiciary  all  the  laws  of 
Parliament,  all  the  customs  of  the  Anglo-Saxon  tribe.  Magna  Charta 
itself  wilh  its  noble  attendant  charters,  were  at  once  swept  away,  and 
all  lli(^  property  of  tiu!  kingdom  put  into  the  hands  of  the  enemy  of 
till!  Mcoplc.  These  four  decisions  would  make  the  King  of  England 
as  al)solule  as  the  Sultan  of  Turkey,  or  the  Russian  (^zar.  If  the 
oj)inion  of  the  .Judges  in  liic  case  of  Impositions  and  Shii)-money  were 

'  Wliilclork,.,  Mcmor.  25.  =  2  Ilallani,  If).  ^2  Ilallam,  18. 


DRS.   SIBTHOKPE   AND   MAINWARING.  47 

accepted  in  law,  —  then  all  the  Property  of  the  People  was  the  King's  ; 
if  the  courts  were  correct  in  their  judgments  giving  the  King  ihe 
power  by  his  mere  will  to  imprison  any  subject,  during  pleasure,  and 
also  to  do  the  same  even  with  members  of  Parliament  and  punish 
them  for  debates  in  the  House  of  Commons,  then  all  liberty  was  at 
an  end,  and  the  King's  Prerogative  extended  over  all  acts  of  Parlia- 
ment, all  property,  all  persons. 

5.  One  step  more  must  be  taken  to  make  the  logic  of  despotism 
perfect,  and  complete  the  chain.  That  work  was  delegated  to  cler- 
gymen purchased  for  the  purpose  —  Rev.  Dr.  Robert  Sibthorpe  and 
Rev.  Dr.  Roger  Mainwaring.  The  first  in  a  sermon  "  of  rendering  all 
their  dues,"  preached  and  printed  in  1627,  says,  "the  Prince  who 
is  the  Head,  and  makes  his  Court  and  Council,  it  is  his  duty  to 
direct  and  make  laws.  '  He  doth  whatsoever  pleaseth  him;'  '  where 
the  word  of  the  King  is  there  is  power,  and  who  may  say  unto 
him,  What  doestthou?'"  And  again,  "If  Princes  command  any 
thing  which  subjects  may  not  perform,  because  it  is  against  the 
Laws  of  God,  or  of  Nature,  or  impossible ;  yet  Subjects  are  bound 
to  undergo  the  punishment,  without  either  resisting,  or  railing,  or 
reviling,  and  are  to  yield  a  Passive  Obedience  where  they  cannot  ex- 
hibit an  Active  one,  .  .  .  but  in  all  others  he  is  bound  to  active  obe- 
dience." 1 

Mainwaring  went  further,  and  in  two  famous  sermons  —  preached, 
one  on  the  4th  of  July,  162S,  the  other  on  the  29th  of  the  same  month 
—  declared  that  "  the  King  is  not  bound  to  observe  the  Laws  of  the 
Realm  concerning  the  Subject's  Rights  and  Liberties,  but  that  his 
Roi/al  ivill  and  Conifnand,  in  imposing  Loans,  and  Taxes,  without 
consent  of  Parliament,  doth  oblige  the  subjecCs  conscience  upon  pain  of 
eternal  dafnnation.  That  those  who  refused  to  pay  this  Loan  of- 
fended against  the  Law  of  God  and  the  King's  Supreme  Authority, 
and  became  guilty  of  Impiety,  Disloyalty,  and  Rebellion.  And  that 
the  authority  of  Parliament  is  not  necessary  for  the  raising  of  Aid 
and  Subsidies ;  and  that  the  slow  proceedings  of  such  great  Assem- 
blies were  not  fitted  for  the  Supply  of  the  State's  urgent  necessities, 
but  would  rather  produce  sundry  impediments  to  the  just  designs  of 
Princes."     "  That  Kings  j)cirtake  of  omnipotence  ivith  GodP  ^ 

The  nation  was  enraged.     Mainwaring  was  brought  before  Par- 

1  Cited  in  Franklyn,  208  ;  1  Ivushworth,  422,  436,  444. 

-  Franklyn,  208,  592.  These  two  Sermons  were  published  in  a  volume  with  the 
title  "  Religion  and  Allegiance."  ..."  Published  by  his  Majesty's  special  command." 
(London,  1628.)  Prof.  Stuart  seems  inspired  by  this  title  in  giving  a  name  to  his 
remarkable  pubhcation  —  written  with  the  same  spirit  as  Dr.  Mainwariug's  —  "Con- 
science and  the  Constitution."  (Andover,  1851.)  See  3  St.  Tr.  335;  1  llushworth, 
422,  43G,  585,  et  aL\  1  Ilallam,  307;  2  Pari.  Hist.  388,  410. 


48  corbuptiojST  of  the  judiciary. 

liament,  punished  with  fine  and  imprisonment  and  temporary  suspen- 
sion from  office  and  perpetual  disability  for  ecclesiastical  preferment. 
But  the  King  who  ordered  the  publication  of  the  sermons,  and  who 
doubtless  had  induced  him  to  preach  them,  immediately  made  him 
Rector  of  Stamford  Parish,  soon  appointed  him  Dean  of  Worcester, 
and  finally  in  1645  made  him  Bishop  of  St.  David's.  A  few  years 
ago  such  clerical  apostasy  would  seem  astonishing  to  an  American. 
But  now.  Gentlemen  of  the  Jury,  so  rapid  has  been  the  downfal  of 
public  virtue,  that  men  filling  the  pulpits  once  graced  and  dignified  by 
noblest  puritanic  piety,  now  publicly  declare  there  is  no  law  of  God 
above  the  fugitive  slave  bill.  Nay,  a  distinguished  American  minis- 
ter boldly  proclaimed  his  readiness  to  send  his  own  Mother  (or 
"Brother")  into  eternal  bondage!  Thus  modern  history  explains 
the  old ;  and  the  cheap  bait  of  a  republican  bribe  can  seduce 
American  dissenters,  as  the  wealthy  lure  of  royal  gifts  once  drew 
British  churchmen  into  the  same  pit  of  infamy.  Alas,  hypocrisy  is 
of  no  sect  or  nation. 

Gentlemen,  the  Government  of  England  once  decreed  "that  every 
clergyman,  four  times  in  the  year,  should  instruct  his  parishioners  in 
the  Divine  right  of  Kings,  and  the  damnable  sin  of  resistance."  ^  No 
Higher  Law  I  America  has  ministers  who  need  no  act  of  Parliament 
to  teach  them  to  do  the  same  ;  they  run  before  they  are  sent. 

6.  After  the  head  of  one  Stuart  was  shorn  off  and  his  son  had 
returned,  no  wiser  nor  better  than  his  father,  the  old  progress  of  des- 
potism began  anew.  I  pass  over  what  would  but  repeat  the  former 
history,  and  take  two  new  examples  to  warn  the  nation  with,  difiiering 
from  the  old  only  in  form. 

In  1672,  Charles  II.  published  a  proclamation  denouncing  rigorous 
penalties  against  all  such  as  should  speak  disrespecifiiUy  of  his  acts, 
or  hearing'  others  thus  speak  should  not  immediately  infonn  the  magis- 
trates !  Nay,  in  1675,  after  he  had  sold  himself  to  the  French  king, 
and  was  in  receipt  of  an  annual  pension  therefrom,  he  had  this  test- 
oath  published  for  all  to  sign:  "  I  do  solemnly  declare  that  it  is  not  law- 
ful vpon  anjj pretence  ivhatever  to  take  up  arms  against  the  king,  .... 
and  that  1  will  not,  at  any  time  to  come,  endeavor  the  alteration  of  the 
government,  either  in  Church  or  State."  ^ 

An  oath  yet  more  stringent  was  enforced  in  Scotland  with  the 
edge  of  the  sword,  namely,  to  defend  all  the  prerogatives  of  the 
crown,  never  without  the  king'' s  permission  to  take  part  in  any  delibera- 
tions upon  ecclesiastical  or  civil  affairs ;  and  never  to  seek  any  reform 
in  Church  or  Stated 

'  2  Camj.lM'll,  400;  1  Kuslnvorlli,  1205. 

'  Carroll'a  Counter  Revolution  (I^oiul.  ISIG),  99,  et  seq. 


SEIZURE   OF   THE    CHARTER   OF   LONDON.  49 

Notwithstanding  all  that  the  Charleses  had  done  to  break  down  the 
liberty  of  Englishmen,  still  the  great  corporate  towns  held  out,  in- 
trenched behind  their  charters,  and  from  that  bulwark  both  annoyed 
the  despot  and  defended  the  civil  rights  of  the  citizen.  They  also 
must  be  destroyed.  So  summons  of  quo  icarranio  were  served  upon 
them,  which  frightened  the  smaller  corporations  and  brought  down 
their  charters.  Jeffreys  was  serviceable  in  this  wicked  work,  and  on 
his  return  from  his  Northern  Circuit,  rich  with  these  infamous  spoils,  as 
a  reward  for  destroying  the  liberties  of  his  countrymen,  the  king  pub- 
licly presented  him  with  a  ring,  in  token  of  "  acceptance  of  his  most 
eminent  services."  This  fact  was  duly  blazoned  in  the  Gazette,  and 
Jeffreys  was  "esteemed  a  mighty  favorite,"  which,  "together  with  his 
lofty  airs,  made  all  the  charters,  like  the  walls  of  Jericho,  fall  down 
before  him,  and  he  returned,  laden  with  surrenders,  the  spoil  of 
towns."  1 

London  still  remained  the  strong-hold  of  commerce,  of  the  Prot- 
estant Religion,  and  of  liberal  Ideas  in  domestic  Government;  for 
though  subsequently  corrupted  by  lust  of  gain,  which  sought  a  monop- 
oly, the  great  commercial  estates  and  families  of  England  were  not 
then  on  the  side  of  Despotism,  as  now  strangely  happens  in  America. 

When  the  king  sought  to  ruin  Shaftesbury, —  a  corrupt  man  doubt- 
less, but  then  on  the  side  of  liberty,  the  enemy  of  encroaching  des- 
potism,—  a  London  Grand-Jury  refused  to  find  a  bill,  and  was 
warmly  applauded  by  the  city.  Their  verdict  of  Ignoramus  was  a 
"  personal  liberty  bill "  for  that  time,  and  therefor  was  the  king's 
wrath  exceeding  hot,  for  "  Ignoramus  was  mounted  in  Cathedra," 
and  there  was  a  stop  put  to  such  wickedness.  So  London  must  be 
brought  down.  She  refused  to  surrender  her  CharteT.  In  1682  the 
king  proceeded  to  wrest  it  from  her  by  the  purchased  hand  of  the 
courts  of  law.  But  even  they  were  not  quite  adequate  to  the  work. 
So  Chief  Justice  Pemberton  was  displaced,  and  Saunders,  —  a  man 
as  offensive  in  his  personal  habit  of  body  as  he  was  corrupt  in  conduct 
and  character — was  put  in  his  office.  Dolbin,  too  just  for  the  crime 
demanded  of  him,  was  turned  out,  and  Withins  made  to  succeed 
him.  For  "  so  great  a  weight  was  there  at  stake  as  could  not  be 
trusted  to  men  of  doubtful  principles,"  says  North.  Saunders,  who 
had  plotted  this  whole  matter,  was  struck  with  an  apoplexy  when 
sentence  was  to  be  given,  but  sent  his  opinion  in  writing.  Thus  on 
the  judgment  given  by  only  two  judges,  who  assigned  no  reasons  for 
their  decision,  it  was  declared  that  the  Charter  of  London  was  forfeit, 


^  8  St.  Tr.  1038,  and  the  quotations  from  North  (Examcn.)  Sprat,  and  Ro^er  Coke, 
in  note  on  p.  1041,  ct  seq.  See,  too,  Fox,  James  II.  p.  48,  54,  and  Appendix,  Barillon's 
Letter  of  Dec.  7th,  1684. 

5 


50  CORRUPTION   OF   THE   JUDICIARY. 

and  the  liberties  and  franchises  of  the  city  should  "  be  seized  into  the 
king's  hands."  ^ 

Thus  fell  the  charter  of  London!  Gentlemen  of  the  Jury,  the 
same  sword  was  soon  to  strike  at  the' neck  of  New  England;  the 
charter  of  Massachusetts  could  not  be  safe  in  such  a  time. 

In  1686  James  II.  wished  to  destroy  Protestantism,  —  not  that  he 
loved  the  Roman  form  of  religion,  but  that  tyranny  which  it  would 
help  him  get  and  keep.  So  he  claimed  the  right  by  his  royal  preroga- 
tive to  dispense  with  any  laws  of  the  land.  Of  the  twelve  Judges  of 
England  eight  were  found  on  his  side,  and  the  four  unexpectedly 
proven  faithful  were  at  once  dismissed  from  office  and  their  places 
filled  with  courtiers  of  the  king,  and  the  court  was  unanimous  that  the 
king  had  a  constitutional  right  to  destroy  the  constitution.  Then  he 
had  not  only  command  of  the  purses  of  his  subjects  and  their  bodies, 
but  also  of  their  mind  and  conscience,  and  could  dictate  the  actual 
Religion  of  the  People  as  well  as  the  official  "  religion  "  of  the  priests.^ 

One  State-secret  lay  at  the  bottom  of  the  Stuarts'  plans, —  to  ap- 
point base  men  for  judges,  and  if  by  accident  a  just  man  came  upon 
the  bench,  to  keep  him  in  obscurity  or  to  hustle  him  from  his  post. 
What  names  they  offer  us — Kelyng,  Finch,  Saunders,  Wright,  Jef- 
freys, Scroggs !  ^  infamous  creatures,  but  admirable  instruments  to 
destroy  generous  men  withal  and  devise  means  for  the  annihilation 
of  the  libehies  of  the  people.  Historians  commonly  dwell  on  the 
fields  of  battle,  recording  the  victories  of  humanity,  whereof  the  pike 
and  gun  were  instruments ;  but  pass  idly  over  the  more  important 
warfare  which  goes  on  in  the  court  house,  only  a  few  looking 
on,  where  lawyers  are  the  champions  of  mankind,  and  the  battle 
turns  on  a  sentence ;  nay,  on  a  word  which  determines  the  welfare  of 
a  nation  for  ages  to  come.  On  such  little  hinges  of  law  do  the  great 
gates  hang,  and  open  or  shut  to  let  in  the  happiness  or  the  ruin  of 
millions  of  men !  Naseby  and  Worcester  are  important  places  truly, 
venerable  for  great  deeds.  Cromwell  and  Blake  are  names  not  likely 
to  perish  while  men  can  appreciate  the  heroism  which  sheds  blood. 
But  Westminster  Hall  has  rung  with  more  important  thunder  than 
cannon  ever  spoke,  and  Pym  and  Selden,  St.  John  and  Hampden  — 
nay,  Penn,  Bunyan,  Fox,  Lilburne  —  have  done  great  service  for 
mankind.  Gentlemen  of  the  Jury,  it  is  a  matter  of  great  magnitude 
wliieh  hinges  on  the  small  question  of  fact  and  law  to-day.  You  are 
to  open  or  shut  for  Humanity.  If  the  People  make  themselves  sheep 
there  will  be  wolves  enough  to  eat  you  up. 

'2  Ilallam,  3;J3  ;  Ikirnet,  Own  Times  (London,  1838),  350;  8  St.  Tr.  1039, 
1081  note,  1267,  et  seq.-  2  Campbell,  Justices,  63  ;  North's  Examcn.  626  ;  Fox,  54. 

'  11  St.  Tr.  116.5;  12  Ibid.  3,',8. 

'This  la.st  name  is  tliought  to  be  extinct  in  (ircat  I'ritiuii,  l)ut  I  find  one  Thomas 
Scruggs  in  MmsachuseUa  in  1635  clposl,  1  Mass.  Itecords  (1628-1611),  index. 


PERSECUTION   FOR  RELIGIOUS   WORDS.  51 

It  is  difficult  to  calculate  the  amount  of  evil  wrought  by  such  cor- 
rupt judges  as  I  have  spoken  of;  they  poison  the  fountains  of  society. 
I  need  not  speak  of  monsters  like  Scroggs  and  Jeffreys,  whose  names 
rot  in  perpetual  infamy,  but  creatures  less  ignoble,  like  Wright,  Saun- 
ders, Finch,  Kelyng,  Thurlow,  Loughborough,  and  their  coadjutors, 
must  be  regarded  as  far  more  dangerous  than  thieves,  murderers,  or 
pirates.  A  cruel,  insolent  Judge  selecting  the  worst  customs,  the  most 
oppressive  statutes,  and  decisions  which  outrage  human  nature  — 
what  an  amount  of  evil  he  can  inflict  on  groaning  humanity ! 

Gentlemen  of  the  Jury,  in  this  long  sad  history  of  judicial  tyranny 
in  England  there  is  one  thing  particularly  plain :  such  judges  hate 
freedom  of  speech,  they  would  restrict  the  Press,  the  Tongue,  yes,  the 
Thought  of  mankind.  Especially  do  they  hate  any  man  who  exam- 
ines the  actions  of  the  government  and  its  servile  courts,  and  their 
violation  of  justice  and  the  laws.  They  wish  to  take  exemplary  and 
malignant  vengeance  on  all  such.  Let  me  freshen  your  knowledge 
of  some  examples. 

1.  In  1410  the  government  made  a  decree  "  that  whatsoever  they 
were  that  should  rede  the  Scriptures  in  the  mother  tongue,  they 
should  forfeit  land,  catel,  body,  lif,  and  godes  from  their  heyres  for- 
ever, and  so  be  condempned  for  heretykes  to  God,  enemies  to  the 
crowne,  and  most  errant  traiters  to  the  land."  The  next  year,  in  one 
day  tliirty-nine  persons  ivere  first  hanged  and  then  burned  for  this 
"  crime."  ^ 

2.  In  1590,  Mr,  Udall,  a  Puritan  minister,  published  a  book, 
"  Demonstrations  of  Discipline,"  not  agreeable  to  the  authorities. 
He  was  brought  to  a  trial  for  a  Felony,  —  not  merely  a  "  misde- 
meanor." The  jury  were  ordered  by  the  judge  to  find  him  guilty  of 
that  crime  if  they  were  satisfied  that  he  published  the  book,  — for  the 
court  were  to  judge  whether  the  deed  amounted  to  that  crime!  He 
was  found  "  guilty,"  and  died  in  jail  after  nearly  three  years  of  cruel 
confinement.^ 

3.  In  1619  one  Williams  of  Essex  wrote  a  book  explaining  a  pas- 
sage in  the  book  of  Daniel  as  foretelling  the  death  of  James  I.  in 
1621.  He  inclosed  the  manuscript  in  a  box,  sealed  it,  and  secretly 
conveyed  it  to  the  king.  For  this  he  was  tried  for  high  treason,  and 
of  course  executed.  "  PunUiir  Affectus,  licet  non  sequatur  Effcctus," 
said  the  court,  for  "  Scribcre  est  ag-ere,''^  "  Punish  the  wish  though  the 
object  be  not  reached,"  for  "  writing  is  doing  I  "  ^ 

^  1  St.  Tr.  252. 

=  1  St.  Tr.  1271;  1  Neal's  Puritans  (N.  Y.  1844),  190.     See   16  Pari.  Hist.  1276, 
where  Mr.  Dunning  says  this  is  the  first  example  of  such  a  charge  to  a  jury. 
^  2  St.  Tr.  1085. 


52  CORRUPTION    OF   THE   JUDICIARY. 

4.  In  1664  Mr.  Keach,  a  Baptist,  published  a  "  Childs'  Instructer, 
or  a  New  and  Easy  Primmer,"  in  which  he  tauglit  the  doctrines  of  his 
sect,  "  that  children  ought  not  to  be  baptized "  but  only  adults ; 
"  that  laymen  may  preach  the  gospel."  He  was  brought  before  Lord 
Chief  Justice  Hyde,  who  after  insulting  the  prisoner,  thus  charged  the 
grand-jury :  —  "  He  is  a  base  and  dangerous  fellow  ;  and  if  this  be  suf- 
fered, children  by  learning  of  it  will  become  such  as  he  is,  and  there- 
fore I  hope  you  will  do  your  duty."  Of  course  such  a  jury  indicted 
him.  The  "  trial "  took  place  before  Judge  Scroggs  ;  the  Jury  were 
at  first  divided  in  opinion.  "  But,"  said  the  Judge,  "  you  must 
agree ! "  So  they  found  him  guilty.  He  was  fined  "  X20,  twice  set 
in  the  pillory,  and  bound  to  make  public  submission."  ^ 

5.  In  1679  George  Wakeman  and  others  were  tried  for  high  trea- 
son before  Scroggs,  whose  conduct  was  atrocious,  and  several  pam- 
phlets were  published  commenting  on  the  ridiculous  and  absurd  con- 
duct of  this  functionary,  "  Lord  Chief  Justice  Scroggs."  One  Rich- 
ard Radley  in  a  bantering  talk  had  bid  another  man  "  Go  to  Weal 
Hall,  to  my  Lord  Scroggs,  for  he  has  received  money  enough  of  Dr. 
Wakeman  I  "  Radley  was  indicted  for  "  speaking  scandalous  words 
of  Chief  Justice  Scroggs."  Whereupon  at  the  opening  of  the  court 
that  eminent  officer,  who  did  not  disdain  to  wreak  public  and  judicial 
vengeance  on  heads  that  wrought  his  private  and  personal  grief,  made 
a  speech  setting  forth  his  magisterial  opinions  on  the  liberty  of  the 
press.  Doubtless  this  court  knows  original  authority  for  the  opinions 
they  follow;  but  for  your  instruction.  Gentlemen  of  the  Jury,  I  will 
give  you  the  chief  things  in  the  judicial  speech  of  Scroggs,  Lord 
Chief  Justice  of  the  Supreme  Court  of  England  in  1679.^ 

"  For  these  liircllng  scribblers  ■who  traduce  it  [the  fairness  and  equality  of  the  trial 
in  which  he  had  been  notoriously  unfair  and  unequal],  who  write  to  eat,  and  lie  for 
bread,  I  intend  to  meet  with  them  another  way ;  for  they  are  only  safe  while  they  can 

be  secret ;  but  so  are  vermin,  so  long  as  they  can  hide  themselves They  shall 

know  that  the  law  wants  not  the  power  to  punish  a  libellous  and  licentious  press,  nor  I 
a  resolution  to  exact  it.  And  this  is  all  the  answer  is  fit  to  be  given  (besides  a  whip) 
to ^thcsc  hackney  writers."  "However,  in  the  mean  inna,  iha  cxtraiHujanl  boldness  of 
men's  pens  and  tonrjues  is  not  to  be  endured,  hut  shall,  be  severely  pnnislied  ;  for  if  once 
causes  come  to  be  tried  with  complacency  to  particular  opinions,  and  shall  be  innocent- 
ly censured  if  thej'go  otherwise,  public  causes  shall  all  receive  the  doom  as  the  multitude 
happen  to  be  possessed  ;  and  at  length  any  cause  shall  become  public  ....  at  every 
session  the  tJudges  shall  be  arraigned,  the  Jury  condemned,  and  the  verdicts  overawed 
to  comply  with  popular  wish  and  indecent  shouts." 

"TlK're  are  a  set  of  men  ....  that  too  much  approve  and  countenance  such  vul- 
gar ways,  ....  that  embrace  all  sorts  of  informations,  true  or  false,  likely  or  impos- 
sible, nay  though  never  so  silly  and  ridiculous,  they  refuse  none  ;  so  shall  all  addresses  be 
made  to  them,  and  they  be  looked  on  as  the  only  patrons  of  religion  and  government !" 

>  7  St.  Tr.  087. 

'^  6  St.  Tr.  701;  sec  Dunning  in  10  I'arl.  Hist.  1270,  et  seq. 


SCROGGS   AND  JEFFREYS.  53 

His  associates  chimed  in  with  accordant  howl.  Puny  Judge  Jones 
declared,  — 

"  We  have  a  particular  case  licre  before  us,  as  a  matter  of  scandal  against  a  groat  Judge, 
the  greatest  Judge  in  the  kingdom,  in  criminal  causes  [the  Lord  Chancellor  Nottingham 
■was  greater  in  civil  causes]  ;  and  it  is  a  great  and  an  high  charge  upon  him.  And  cer- 
tainly there  was  never  any  age,  I  think,  more  licentious  than  this  in  aspersing  gov- 
ernors, scattering  of  libels  and  scandalous  speeches  against  those  that  are  in  authority ;  and 
without  all  doubt  it  doth  become  the  court  to  shoio  their  zeal  in  suppressing  it."  [It  was 
'  resisting  an  officer.']  "  That  trial  [of  Dr.  Wakeman]  was  managed  with  exact  justice 
and  perfect  iiitegrilij.  And  therefore  I  do  think  it  very  fit  that  this  person  be  pro- 
ceeded against  by  an  information,  that  he  may  be  made  a  piublic  example  to  all  such  as 
shall  presume  to  scandalize  the  government,  and  the  governors,  with  any  false  asper- 
sions and  accusations." 

Accordingly  Mr.  Radley,  for  that  act,  was  convicted  of  speaking 
"  scandalous  words  against  the  Lord  Chief  Justice  Scroggs  "  and  fined 
X  200.1 

Mr.  Hudson  says  of  the  Star- Chamber,  "  So  tender  the  court  is  of 
upholding  the  honor  of  the  sentence,  as  they  will  punish  them  who 
speak  against  it  with  great  severity."  ^ 

6.  In  1680  Benjamin  Harris,  a  bookseller,  sold  a  work  called  "  An 
Appeal  from  the  country  to  the  city  for  the  Preservation  of  his 
Majesty's  Person,  Liberty,  Property,  and  the  Protestant  Religion." 
He  was  brought  to  trial  for  a  libel,  before  Recorder  Jeffreys  and 
Chief  Justice  Scroggs  who  instructed  the  jury  they  were  only  to 
inquire  if  Harris  sold  the  book,  and  if  so,  find  him  "  guilty."  It  was 
for  the  court  to  determine  what  was  a  Ubel.  He  was  fined  five  hun- 
dred pounds  and  placed  in  the  pillory ;  the  Chief  Justice  wished  that 
he  might  be  also  whipped.'^ 

7.  The  same  year  Henry  Carr  was  brought  to  trial.  He  published 
a  periodical  —  "  the  Weekly  Packet  of  advice  from  Rome,  or  the  His- 
tory of  Popery  "  —  hostile  to  Romanism.  Before  the  case  came  to 
court,  Scroggs  prohibited  the  publication  on  his  own  authority.  Mr. 
Carr  was  prosecuted  for  a  libel  before  the  same  authority,  and  of 
course  found  guilty.  The  character  of  that  court  also  was  judgment 
against  natural  right.  Jane  Curtis  and  other  women  were  in  like 
manner  punished  for  speaking  or  publishing  words  against  the  same 
"  great  judge."  *  And  it  was  held  to  be  a  "  misdemeanor  "  to  publish 
a  book  reflecting  on  the  justice  of  the  nation  —  the  truer  the  book 
the  worse  the  libel  I  It  was  "  obstructing  an  officer,"  and  of  course  it 
was  a  greater  offence  to  "  obstruct "  him  with  Justice  and  Truth  than 
with  wrong  and  lies.     The  greater  the  justice  of  the  act  the  more 

1  7  St.  Tr.  701.  -  In  2  Collectanea  Juridica,  228. 

»  7  St.  Tr.  925.  *  7  St.  Tr.  1111,  t)59 ;  4  TarL  Hist.  1274. 

5* 


54  CORRUPTION   OF   THE  JUDICIAR'Y. 

dangerous  the  "  crime  !  "     If  the  language  did  not  hit  any  one  person 
it  was  "  malice  against  all  mankind," 

8.  In  1684  Sir  Samuel  Barnardiston  was  brought  to  trial  charged 
with  a  "  High  Misdemeanor."  He  had  written  three  private  letters 
to  be  sent  —  it  was  alleged  —  by  post  to  his  friend,  also  a  private 
man.  The  letters  do  not  appear  designed  for  any  further  publication 
or  use ;  they  related  to  matters  of  news,  the  events  of  the  day  and 
comments  thereon,  and  spoke  in  praise  of  Algernon  Sidney  and  Lord 
Russell  who  were  so  wickedly  beheaded  about  the  time  the  letters 
were  written.  It  would  require  a  microscopic  eye  to  detect  any  evil 
lurking  there.     Jeffreys  presided  at  the  trial,  and  told  the  jury  :  — 

"  The  letters  are  factious,  seditious,  and  malicious  letters,  and  as  base  as  the  worst  of 
mankind  could  ever  have  invented."  "  And  if  he  be  guilty  of  it  —  the  greater  the  man 
is  the  greater  the  crime,  and  the  more  understanding  he  has,  the  more  malicious  he 
seems  to  be ;  for  your  little  ordinary  sort  of  people,  that  are  of  common  mean  under- 
standing, they  may  be  wheedled  and  drawn  in,  and  surprised  into  such  things ;  but 
men  of  a  public  figure  and  of  some  value  in  the  world  that  have  been  taken  to  be  men 
of  the  greatest  interest  and  reputation  in  a  party,  it  cannot  be  thought  a  hidden  sur- 
prise upon  them  ;  no,  it  is  a  work  of  time  and  thought,  it  is  a  thing  fixed  in  his  very 
nature,  and  it  shows  so  much  venom  as  would  make  one  think  the  whole  mass  of  his  blood 
were  corrupt"  "  Here  is  the  matter  he  is  now  accused  of,  and  here  is  in  it  malice 
against  the  king,  malice  against  the  government,  malice  against  both  Church  and  State, 
malice  against  any  man  that  bears  any  share  in  the  government,  indeed  malice  against 
all  mankind  that  are  not  of  the  same  persuasion  with  these  bloody  miscreants." 
"  Here  is  .  .  .  the  sainting  of  two  horrid  conspirators  !  Here  is  the  Lord  Russell 
sainted,  that  blessed  martyr ;  Lord  Russell,  that  good  man,  that  excellent  Protestant,  he 
is  lamented !  And  here  is  Mr.  Sidney  sainted,  what  an  extraordinary  man  he  was !  Yes, 
surely  he  was  a  very  good  man  —  and  it  is  a  shame  to  think  that  such  bloody  miscreants 
should  be  sainted  and  lamented  who  had  any  hand  in  that  horrid  murder  [the  execu- 
tion of  Charles  I.]  and  treason  .  .  .  who  could  confidently  bless  God  for  their  being 
engaged  in  that  good  cause  (as  they  call  it)  which  was  the  rebellion  which  brought 
that  blessed  martyr  to  his  death.  It  is  high  time  for  all  mankind  that  have  any 
Christianity,  or  fear  of  Heaven  or  Hell,  to  bestir  themselves,  to  rid  the  nation  of  such 
caterpillars,  such  monsters  of  villany  as  those  are  ! " 

Of    course    the    packed    jury   found    him   guilty;    he  was  fined 

i:io,ooo.i 

Gentlemen  of  the  Jury,  such  judges,  with  such  kings  and  cabi- 
nets, have  repeatedly  ])rought  the  dearest  rights  of  mankind  into 
imminent  peril.  Sad  indeed  is  the  condition  of  a  nation  where  Thought 
is  not  free,  where  the  lips  are  sewed  together,  and  the  press  is  chained ! 
Yet  the  evil  which  has  ruined  Spain  and  made  an  Asia  Minor  of 
Papal  Italy,  once  threatened  England.  Nay,  Gentlemen  of  the  Jury, 
it  required  the  greatest  efforts  of  her  noblest  sons  to  vindicate  for  you 
and  me  the  right  to  print,  to  speak,  to  think.     Milton's  "  Speech  for 

'  7  St.  Tr.  1333. 


UNLICENSED    PRINTING   FORJJIDDEN.  55 

the  Liberty  of  unlicensed  Printin<^"  is  one  monument  of  the  warfare 
which  lasted  from  Wiclifl'e  to  Thomas  Carlyle.  But  other  monu- 
ments are  the  fines  and  imprisonment,  the  exile  and  the  beheading  of 
men  and  women!  Words  are  "sedition,"  "rebellion,"  "treason;" 
nay,  even  now  at  least  in  New  England,  a  true  word  is  a  "  Misde- 
meanor," it  is  "  obstructing  an  officer."  At  how  great  cost  has  our 
modern  liberty  of  speech  been  purchased!  Answer  John  Lilburne, 
answer  William  Prynn,  and  Selden,  and  Eliot,  and  Hampden,  and 
the  other  noble  men  who 

"ill  lliG  public  breach  devoted  stood, 


And  for  their  country's  cause  were  prodigal  of  blood."    • 

Answer  Fox  and  Bunyan,  and  Penn  and  all  the  host  of  Baptists, 
Puritans,  Quakers,  martyrs,  and  confessors  — it  is  by  your  stripes  that 
we  are  healed  !  Healed !  are  we  healed  ?  Ask  the  court  if  it  be  not 
a  "  misdemeanor"  to  say  so  ! 

A  despotic  government  hates  implacably  the  freedom  of  the  press. 
In  1680  the  Lord  Chief  Justice  of  England  declared  the  opinion  of  the 
twelve  judges  "indeed  all  subscribe  that  io print  or  publish  any  7ieics- 
books,  or  pamphlets  of  neivs  whatsoeiwr,  is  illegal;  that  it  is  a  manifest 
intent  to  the  breach  of  the  peace,  and  they  may  be  proceeded  against 
by  law  for  an  illegal  thing."  "  And  that  is  for  a  public  notice  to  all 
people,  and  especially  printers  and  booksellers,  that  the//  ong-ht  to  print 
no  book  or  pamphlet  of?ieius  ivhatsoever  without  authoritij ; "  "  tJiey  shall 
be  punished  if  they  do  it  ivithout  authority,  though  there  is  nothiftg 
reflecting  on  the  government."  ^  Judge  Scroggs  was  right  —  it  was 
"resisting  an  officer,"  at  least  "obstructing"  him  in  his  wickedness; 
In  England,  says  Lord  Campbell,  the  name  and  family  of  Scroggs  are 
both  extinct.  So  much  the  worse  for  you  and  me,  Gentlemen.  The 
Scrogges  came  over  to  America;  they  settled  in  Massachusetts,  they 
thrive  famously  in  Boston ;  only  the  name  is  changed. 

In  1731  Sir  Philip  Yorke,  attorney-general,  solemnly  declared  that 
an  editor  is  "  not  to  publish  any  thing  reflecting  on  the  character  and  repu- 
tation and  administration  of  his  Majesty  or  his  Ministers  ;^^  "if  he  breaks 
that  law,  or  exceeds  that  liberty  of  the  press  he  is  to  be  punished  for  itP 
Where  did  he  get  his  law  —  in  the  third  year  of  Edward  I.,  in  a.  d.  1275 ! 
But  that  statute  of  the  Dark  Ages  was  held  good  law  in  1731 ;  and 
it  seems  to  be  thought  good  law  in  1855 !  And  the  attorney  who 
affirmed  the  atrocious  principle,  soon  became  Chief  Justice,  a  "  con- 
summate judge,"  a  Peer,  Lord  Hardwicke,  and  Lord  Chancellor !  ^ 
Lord  Mansfield  had  not  a  much  higher  opinion  of  the  liberty  of  the 
press  ;  indeed,  in  all  libel  cases,  he  assumed  it  was  exclusively  the 

1  7  St.  Tr.  1127.  - 17  St.  Tr.  674  ;  5  Campbell,  57  ;  Hildreth's  Despotism,  199. 


56  CORRUPTION   OF   THE  JUDICIARY. 

function  of  the  judges  to  determine  whether  the  words  published 
contained  malicious  or  seditious  matter,  the  jury  were  only  to  find  the 
fact  of  publication.^  Thus  the  party  in  power  with  their  Lough- 
boroughs,  their  Thurlows,  their  Jeffreys,  their  Scroggs  —  shall  I  add 
also  American  names  —  are  the  exclusive  judges  as  to  what  shall  be 
published  relating  to  the  party  in  power  —  their  Loughboroughs,  their 
Thurlows,  their  Jeffreys  and  their  Scroggs,  or  their  analogous 
American  names !  It  was  the  free  press  of  England  —  Elizabeth 
invoked  it  —  which  drove  back  the  "invincible  Armada;"  this  which 
stayed  the  tide  of  Papal  despotism ;  this  which  dyked  the  tyranny  of 
Louis  XIV.  out  from  Holland.  Aye,  it  was  this  which  the  Stuarts, 
with  their  host  of  attendants,  sought  to  break  down  and  annihilate 
for  ever ;  ^  which  Thurlow  and  Mansfield  so  formidably  attacked,  and 
which  now  in  America  —  but  the  American  aspect  of  the  matter 
must  not  now  be  looked  in  the  face. 

But  spite  of  all  these  impediments  in  the  way  of  liberty,  the  voice 
of  humanity  could  not  be  forever  silented.  Now  and  then  a  virtuous 
and  high-minded  judge  appeared  in  office  —  like  Hale  or  Holt,  Cam- 
den or  Erskine.  Even  in  the  worst  times  there  were  noble  men  who 
lifted  up  their  voices.  Let  me  select  two  examples  from  men  not 
famous,  but  whose  names,  borne  by  other  persons,  are  still  familiar 
to  this  court. 

In  1627  Sir  Robert  Phillips,  member  for  Somersetshire,  in  his  place 
inJParliaraent,  thus  spoke  against  the  advance  of  despotism  :^  — 

"  I  read  of  a  custom  among  tlie  old  Romans,  that  once  every  year  they  had  a  solemn 
feast  for  their  slaves ;  at  ■which  they  had  liberty,  Avithout  exception,  to  speak  what  they 
■would,  therebj'  to  ease  their  afflicted  minds ;  which  being  finished,  they  severally  re- 
turned to  their  former  servitude.  This  may,  with  some  resemblance  and  distinction, 
•well  set  forth  our  present  state;  where  now,  after  the  revolution  of  some  time,  and 
grievous  sufferance  of  many  violent  oppressions,  we  have,  as  those  slaves  had,  a  day  of 
liberty  of  speech  ;  but  shall  not,  I  trust,  be  hereafter  slaves,  for  we  are  free :  yet  what 
new  illegal  proceedings  our  estates  and  persons  have  suffered  under,  my  heart  yearns 
to  think,  my  tongue  falters  to  utter.  They  have  been  well  represented  by  divers 
worthy  gentlemen  before  me ;  yet  one  grievance,  and  the  main  one,  as  I  conceive,  hath 
not  been  touched,  ■which  is  our  Kcligion:  religion,  JMr.  Speaker,  made  vendible  by 
commission,  and  men,  for  pecuniary  annual  rates,  dispensed  witlial ;  Judgments  of  law 
against  our  liberty  tiiere  have  been  three ;  each  latter  stepping  forwarder  than  the 
former,  upon  tlie  Riglits  of  the  Subje'ct;  aiming,  in  the  end,  to  tread  and  tramj)le  under- 
foot our  law,  and  that  even  in  the  form  of  law." 

"  The  first  was  the  Juilgment  of  the  Postnati,  (the  Scots,)  .  .  .  The  second  was  the 
Judgment  upon  Impositions,  in  the  Exchequer  Court  by  the  barons;  which  hath  been 
the  source  and  fountain  of  many  bitter  waters  of  afiliction  unto  our  merchants."     "  The 

1  20  St.  Tr.  000.     r.iit  sec  28  St.  Tr.  595,  and  10  I'arl.  Ilisl.  1211. 

'■i  For  tliR  fn!f|iiciicy  of  triiils  for  wonls  spoken  in  Chiirkis  II. 's  reign  of  terror,  sec  the  extracts 
from  NarciMiis  Luttrd'H  IJricf  IlistoricsU  Kclation,  10  St.  Tr.  126. 
»  1  Kiisliwortli,  502. 


ROBERT  PHILLIPS   AND   PHILIP   PARKER.  57 

third  ^Yas  that  fatal  late  Judgment  against  the  Liberty  of  the  Subject  imprisoned  by 
the  king,  argued  and  pronounced  but  by  one  judge  alone."  "  I  can  live,  altliough 
another  wlio  has  no  right  be  put  to  live  with  me ;  nay,  I  can  live  although  I  pay 
excises  and  impositions  more  than  I  do;  but  to  have  mj^ liberty,  which  is  the  soul  of 
my  life,  taken  from  me  by  power;  and  to  have  my  body  pent  up  in  a  gaol,  without 
remedy  by  law,  and  to  be  so  adjudged:  O  improvident  ancestors!  O  unwise  fore- 
fathers !  To  be  so  curious  in  providing  for  the  quiet  possession  of  our  lands,  and  the 
liberties  of  Parliament ;  and  to  neglect  our  persons  and  bodies,  and  to  let  tliem  He  in 
prison,  and  that  durante  bene  placito,  remediless !  If  this  be  law,  why  do  we  talk  of 
liberties  ?  Why  do  we  trouble  ourselves  with  a  dispute  about  law,  franchises,  property 
of  goods,  and  the  like?  What  may  any  man  call  his  own,  if  not  the  Liberty  of  his 
Person  ?     I  am  weary  of  treading  these  ways."  ^ 

In  1641  Sir  Philip  Parker,  Knight  of  the  Shire  for  Suffolk,  in  his 
place  in  Parliament,  thus  spoke  :  — 

"  The  cries  of  the  people  have  come  up  to  me ;  the  voice  of  the  whole  nation  tingles 
in  my  ears."  "  'T  is  true,  I  confess,  we  have  tormented  ourselves  with  daily  troubles 
and  vexations,  and  have  been  very  solicitous  for  the  welfare  of  the  Commonwealth ; 
but  what  have  we  performed,  what  have  we  perfected  ?  Mr.  Speaker,  excuse  my  zeal 
in  this  case  ;  for  my  mouth  cannot  imprison  what  my  mind  intends  to  let  out ;  neither 
can  my  tongue  conceal  what  my  heart  desires  to  promulge.  Behold  the  Archbishop 
[Laud],  that  great  Incendiary  of  this  kingdom,  lies  now  like  a  firebrand  raked  up  in 
the  embers ;  but  if  ever  he  chance  to  blaze  again  I  am  afraid  that  what  heretofore  he 
had  but  in  a  spark,  he  will  burn  down  to  the  ground  in  a  full  flame.  Wherefore  let  us 
begin,  for  the  kingdom  is  pregnant  with  expectation  on  this  point.  I  confess  there  are 
many  more  delinquents,  for  the  judges  and  other  knights  walk  in  querpo ;  but  they  are 
only  thunderbolts  forged  in  Canterbury's  fire."" 

Six  of  the  wicked  judges  were  soon  brought  to  trial.^ 


This  same  threefold  experiment  of  despotism  which  was  attempted 
in  England,  was  tried  also  in  America  by  the  same  tyrannical  hand. 
Here,  also,  the  encroaching  power  put  creatures  of  its  arbitrary 
will  in  judicial  offices ;  they  then  by  perverting  the  laws,  punished 
the  patriots,  and  next  proceeded  to  destroy  the  best  institutions  of  the 
land  itself.  Here  I  shall  take  but  a  few  examples,  selected  from  the 
colonial  history  of  our  own  New  England. 

After  capturing  the  great  fortress  of  freedom  at  home,  by  taking 
away  the  charter  of  London,  Charles  proceeded  to  destroy  the  free- 
dom of  the  colonies ;  the  Charter  of  Massachusetts  was  wrested  from 
us  on  a  quo  ivarranto  in  1683,^  and  the  colony  lay  at  the  feet  of  the 

^  2  Pari.  Hist.  232.     See  also  441,  471.     He  had  been  thrown  into  the  Tower  by 
James  in  1624.     Cabbala  (3d  Ed.),  311. 

2  Pari.  Hist.  867.  »  1  Rushworth,  502. 

'  *  See  the  steps  of  the  process  in  1  Hutchinson,  (Salem,  1795,)  297;  8  St.  Tr.  1068, 
note. 


58  CORRUPTION    OF   THE   JUDICIARY. 

monarch.  In  privy  council  it  had  already  been  determined  that  our 
rights  should  be  swept  into  the  hands  of  some  greedy  official  from 
the  court.^  In  1686  James  11.  sent  Sir  Edmund  Andros  to  New 
England  as  a  "  Commissioner  "  to  destroy  the  liberty  of  the  people. 
He  came  to  Boston  in  the  "  Kingfisher,  a  fifty  gun  ship,"  and  brought 
two  companies  of  British  soldiers,  the  first  ever  stationed  in  this 
town  to  dragoon  the  people  into  submission  to  an  unrighteous  law. 
Edward  Randolph,  the  most  determined  enemy  of  the  colony,  greedily 
caressing  the  despotic  hands  that  fed  him,  was  his  chief  coadjutor 
and  assistant,  his  secretary,  in  that  wicked  work.  Andros  was  au- 
thorized to  appoint  his  own  council,  and  with  their  consent  enact 
laws,  levy  taxes,  to  organize  and  command  the  militia.  He  was  to 
enforce  the  hateful  "  Acts  of  Trade."  He  appointed  a  council  to  suit 
the  purpose  of  his  royal  master,  to  whom  no  opposition  was  allowed. 
Dudley,  the  new  Chief  Justice,  told  the  people  who  appealed  to 
Magna  Charta,  "  they  must  not  think  the  privileges  of  Englishmen 
would  follow  them  to  the  end  of  the  world."  Episcopacy  was  intro- 
duced ;  no  marriages  were  to  "  be  allowed  lawful  but  such  as  were 
made  by  the  'minister  of  the  Church  of  England."  Accordingly,  all 
must  come  to  Boston  to  be  married,  for  there  was  no  Episcopal  min- 
ister out  of  its  limits.  It  was  proposed  that  the  Puritan  Churches 
should  pay  the  Episcopal  salary,  and  the  Congregational  worship  be 
prohibited.  He  threatened  to  punish  any  man  "  who  gave  two  pence  " 
toward  the  support  of  a  Non-conformist  minister.  All  fees  to  officers 
of  the  new  government  were  made  exorbitantly  great.  Only  one 
Probate  office  w^as  allowed  in  the  Province,  that  was  in  Boston ;  and 
one  of  the  creatures  of  despotic  power  was,  prophetically,  put  in  it. 
Andros  altered  the  old  form  of  oaths,  and  made  the  process  of  the 
courts  to  suit  himself. 

He  sought  to  wrest  the  charters  from  the  Colonies ;  that  of  Rhode 
Island  fell  into  his  hands  ;  Connecticut  escaped  by  a  "  mii'acle :  " 

"  The  Charter-Oak  —  it  was  the  tree 
That  saved  our  sacred  Liberty." 

The  Charter  government  of  Plymouth  was  suspended.  Massachu- 
setts was  put  under  arbitrary  despotism.  Towns  were  forbidden  to 
meet,  except  for  the  choice  of  officers;  there  must  be  no  deliberation  ; 
"  discussion  must  be  suppressed."     He  was  to  levy  all  the  taxes ;  he 

'  T'arillon  to  Louis  XIV.  in  Fox's  Appendix,  p.  vii.,  el  serj.  In  1G85  Ilalitiix,  who 
Lad  been  friendly  to  the  rights  of  the  colonics,  was  dismissed  from  his  odicc;  Sunder- 
land, tlicir  enemy,  had  a  pension  from  Louis  XIV.  of  £5,000  or  £6,000  a  year;  p. 
cxxvii.,  cxxx.  el  srfj.,  cxliii.,  cxlviii.  Not  the  last  instance  of  a  high  functionary  pen- 
sioned by  a  foreign  hand  ! 


ANDROS,   RANDOLPH,   IIIGGIXSON.  59 

assessed  a  penny  in  the  pound  in  all  the  towns.  Rev.  John  Wise, 
one  of  the  ministers  of  Ipswich,  advised  the  people  to  resist  the  tax. 
"Democracy,"  said  he,  "is  Christ's  government  in  Church  and  State; 
we  have  a  good  God  and  a  good  king;  we  shall  do  well  to  stand  to  our 
privileges."  One  of  the  Council  said,  "  You  have  no  privileges  left 
you^  hut  not  to  he  sold  as  slavesP  Even  that  was  not  likely  to  last  long. 
The  town  of  Ipswich  refused  to  pay  the  tax,  because  invalid ;  the 
governor  having  no  authority  to  tax  the  people:  "they  will  petition 
the  King  for  liberty  of  an  assembly  before  they  make  any  rates." 
The  minister  and  five  others  were  arrested ;  they  had  "  obstructed  an 
officer."  The  Rev.  Mr.  Wise  was  guiltiest  of  all ;  he  did  it  with  a 
word,  an  idea.  They  were  brought  to  Boston,  and  thrown  into  jail, 
"  for  contempt  and  high  misdemeanors."  They  claimed  the  haheas 
corpus ;  Chief  Justice  Dudley  refused  it,  on  the  ground  that  it  did 
not  extend  to  America!  They  vv^ere  tried  before  a  packed  jury,  and 
such  a  court  as  James  II.  was  delighted  to  honor.  The  patriots 
plead  the  laws  of  England  and  Magna  Charta.  It  was  all  in  vain. 
"  I  am  glad,"  said  the  judge  to  his  packed  jury,  "there  be  so  many 
worthy  gentlemen  of  the  jury,  so  capable  to  do  the  king  service  ;  and 
we  expect  a  good  verdict  from  you,  seeing  the  matter  hath  been  so 
sufficiently  proved  against  the  criminals.''''  The  jury  of  course  found 
them  guilty.  They  Avere  fined  from  £lo  to  X50  a  piece.  The 
whole  cost  to  the  six  was  over  £400.  "  It  is  not  for  his  majesty's 
interest  that  you  should  thrive,"  said  one  of  those  petty  tyrants,  —  a 
tide-water  of  despotism.^ 

Andros  denied  the  colonial  title  to  lands,  claiming  that  as  the 
charter  was  declared  void,  all  the  lands  held  under  its  authority 
escheated  to  the  crown,  —  "  The  calf  died  in  the  cow's  belly."  A 
deed  of  purchase  from  the  Indians  was  "  worth  no  more  than  the 
scratch  of  a  bear's  paw."  "  The  men  of  Massachusetts  did  much 
quote  Lord  Coke  "  for  their  titles :  but  Rev.  John  Higginson,  minister 
of  the  first  church  in  Salem,  the  son  of  the  ffi-st  minister  ever  ordained 
in  New  England,  —  and  ancestor  of  this  noble-hearted  man  [Rev.  T. 
W.  Higginson]  who  is  now  also  indicted  for  a  "  misdemeanor,"  — 
found  other  laws  for  their  claim,  and  insisted  on  the  citizens' just  and 
natural  right  to  the  lands  they  had  reclaimed  from  the  wilderness.- 
Andros  said,  "  You  are  either  subjects,  or  else  you  are  rebels ; "  and 
in  either  case,  their  lands  would  be  forfeit. 

Andros  hated  freedom  of  speech  and  of  thought.  He  was  to 
allovv'   no  unlicensed  printing.     Randolph  was  appointed  censor  of 

1  1  Hutch.  316;  2  Hildretli,  Hist.  108;  2  Bancroft,  425;  Washburn,  Judicial  Hist. 
of  Mass..  105;  Drake's  Boston,  ch.  L. 

-  1  Felt's  Salem,  24 ;  2  lb.  542  ;  Felt's  Ipswich,  123,  et  seq. ;  Gage's  Eowley,  157,  et  seq.; 
Sullivan's  Land  Titles,  54. 


60  CORRUPTION   OF   THE   JUDICIARY. 

the  press,  and  ordered  the  printer  to  publish  nothing  without  his  ap- 
probation, nor  "any  ahiianac  whatever."  There  must  be  but  one 
town  meeting  in  a  year,  and  no  "  deliberation  "  at  that ;  no  "  agitation," 
no  discussion  of  grievances.  There  must  be  no  preaching  on  the  acts 
of  the  government.  Rev.  Dr.  Increase  Mather,  one  of  the  ablest  men 
in  the  Colonies,  was  the  special  object  of  his  hate.  Randolph  advised 
the  authorities  to  forbid  any  non-conformist  minister  to  land  in  New 
England  without  the  special  consent  of  the  governor,  and  that  he 
should  restrain  such  as  he  saw  fit  to  silence.  The  advice  was  not 
lost  on  such  willing  ears.  John  C4old,  of  Topsfield,  was  tried  for 
"  treasonable  words,"  and  fined  fifty  pounds — a  great  deal  more  at 
Topsfield  in  1687,  than  "three  hundred  dollars"  is  now  in  Boston. 
Rev.  Increase  INIather  had  opposed  the  surrender  of  the  Charter  of 
Massachusetts,  and  published  his  reasons ;  but  with  such  prudence, 
for  he  was  careful  how  he  "evinced  an  express  liking"  for  justice, 
that  it  was  difficult  to  take  hold  of  him.  So  the  friends  of  govern- 
ment forged  a  letter  with  his  name,  to  a  person  in  Amsterdam. 
Randolph  showed  the  letter  to  persons  wjiom  he  wished  to  prejudice 
against  the  alleged  writer.  When  Mr.  Mather  learned  the  facts,  he 
wrote  a  letter  tt  a  friend,  clearing  himself,  and  charging  the  forgery 
on  Randolph  or  his  brother.  Randolph  brought  his  action  for  a  libel, 
claiming  X500  damages.  But  it  came  to  nothing  —  then.  Now 
times  are  changed  ! 

Col.  Pynchon,  of  Springfield,  one  of  the  officers  in  this  new  state 
of  things,  w^as  empowered  to  bind  over  all  persons  suspected  of  riots, 
"  outrageous  or  abusive  reflecting'  ivords  and  speeches  against  the 
government.^''  "  The  spirit  of  justice  was  banished  from  the  courts 
that  bore  the  name."  ^ 

But  notwithstanding  the  attempt  to  stifle  speech,  a  great  tall 
minister  at  Rowley,  called  Andros  "  a  wicked  man ! "  For  that 
offence  he  was  seized  and  put  in  prison !  He,  also,  like  Higgin- 
son,  is  represented  in  this  court  by  one  of  his  own  name ;  and  the 
same  inextinguishable  religious  fire  which  burned  in  the  bosom  of 
Robert  in  Old  England,  and  from  Samuel  in  New  England  flashed 
into  the  commissioned  face  of  Andros,  now  lightens  at  this  bench  from 
the  eyes  of  Wendell  Phillips,  who  confers  new  glory  on  his  much- 
honored  ancestor. 

Gentlemen  of  the  .Jury,  you  know  how  this  wickedness  was 
brought  to  an  end.  If  th(;  courts  would  not  decree  Justice,  there  was 
a  rougher  way  of  reaching  it,  and  having  it  done.  Civil  war,  revolu- 
tion by  violence,  came  in  place  of  the  simple  forms  of  equity,  which 

'  1  Hutch.  327;  Washburn,  ibid. 


DESPOTISM   IN   XEW   EXGLAND.^  61 

the  judges  had  set  at  nought.  William  of  Orange,  a  most  valiant 
son-in-law,  drove  the  foul  tyrant  of  Old  England  from  that  Island, 
where  the  Stuarts  have  ever  since  been  only  "  Pretenders ; "  and  on 
the  19th  of  April,  1689,  the  people  of  Massachusetts  had  the  tyrant 
of  New  "England  put  solemnly  in  jail  I  We  were  rid  of  that  func- 
tionary for  ever,  and  all  such  "  commissioners  "  have  been  held  odious 
in  New  England  ever  since  the  days  of  Andros.  Eighty-six  years 
later  came  another  19th  of  April,  also  famous.  Well  said  Secre- 
tary Randolph,  "Andros  has  to  do  with  a  perverse  people,"  —  they 
would  not  bow  to  such  tyranny  in  1689.  But  he  afterwards  became  a 
quite  acceptable  governor  in  Virginia,  —  where,  I  doubt  not,  he  has 
descendants  in  African  bondage  at  this  day. 

Catholic  James  II.  sought  to  establish  arbitrary  power  in  America, 
as  in  England,  by  his  prerogative  —  the  Omnipotence  of  the  King; 
he  failed ;  the  high-handed  despotism  of  the  Stuarts  went  to  the 
ground.  The  next  attempt  at  the  same  thing  was  by  the  legislature 
—  the  Omnipotence  of  Parliament  —  for  a  several-headed  despotism 
took  the  place  of  the  old,  and  ruled  at  home  with  milder  sway.  It 
tried  its  hand  in  America ;  there  were  no  more  requisitions  from  a 
king  hostile  to  the  Colonies,  but  acts  of  Parliament  took  their  place. 
After  the  French  power  in  North  America  had  given  way,  the  British 
government  sought  to  tame  down  and  break  in  the  sturdy  son,  who 
had  grown  up  in  the  woods  so  big  and  rough,  as  obstinate  as  his 
father.  Here  are  three  measures  of  subjugation,  all  flowing  from  the 
same  fountain  of  Principle  —  vicarious  government  by  a  feudal 
superior. 

1.  All  the  chief  colonial  officers  were  to  be  appointed  by  the  king, 
to  hold  office  during  his  pleasure,  to  receive  their  pay  from  him.  Such 
was  the  tenure  of  the  executive  officers  who  had  a  veto  on  all  colonial 
legislation,  and  of  the  judicial  officers.  Thus  the  power  of  making 
and  administering  the  laws  fell  from  the  people  distributed  every- 
where, into  the  hands  of  the  distant  government  centralized  in  the 
King. 

2.  A  standing  army  of  British  soldiers  must  be  kept  in  the  Colo- 
nies to  overawe  the  people,  and  enforce  the  laws  thus  made  and 
administered. 

3.  A  revenue  was  to  be  raised  from  the  Colonies  themselves  — from 
which  the  King  would  pay  his  officers  and  provide  for  his  army  that 
enforced  bis  laws.  The  eagle  is  to  feather  the  arrow  which  shoots 
him  in  mid  heaven. 

Thus  law  was  a  threefold  cord  wherewith  to  bind  the  strong  Puritan. 
But  his  eyes  were  not  put  out  —  not  then.  Blindness  came  at  a  later 
day  —  when  he  had  laid  his  head  in  the  lap  of  a  not  attractive  Deli- 

6 


62  CORRUPTION   OF   THE  JUDICIARY. 

lah.  With  such  judges  and  governors,  backed  by  a  standing  army 
of  hirelings  —  how  soon  would  her  liberty  go  down,  and  the  Anglo- 
American  States  resemble  Spanish  America! 

In  1760  Francis  Bernard  was  made  governor  of  Massachusetts, 
and  thus  officially  put  at  the  head  of  the  Judiciary,  a  man  wholly 
devoted  to  the  Crown,  expecting  to  be  made  a  baronet!  He  did 
not  wish  an  annual  election  of  councillors,  but  wanted  the  sovereign 
power  to  enforce  its  decrees  by  violent  measures.  Thus  Thomas 
Hutchinson  was  made  Chief  Justice  in  1760,  and  afterwards  Lieu- 
tenant-Governor,—  continually  hostile  to  the  constitution  of  his 
native  land.  Thus  Andrew  Oliver  —  "Governor  Oliver,"  "hungry 
for  office  and  power,"  was  appointed  Secretary,  Commissioner  of 
Stamps  and  Lieutenant-Governor;  and  Peter  Oliver  —  "Judge  Oli- 
ver"—  though  not  bred  a  lawyer,  was  made  Chief  Justice,  the 
man  who  refused  to  receive  his  salary  from  the  treasury  of  Massa- 
chusetts, preferring  the  money  of  the  crown  which  owned  him.  In 
the  revolutionary  times  of  the  five  Judg^es  of  Massaphiiselts  four 
v'ere  Tories  I 

Accordingly,  when  the  Stamp  Act  was  passed — 22d  March,  1765  — 
there  were  Judicial  officers  in  the  Colonies  ready  to  declare  it  "  consti- 
tutional;" executive  magistrates  ready  to  carry  out  any  measures 
intrusted  to  them.  "  I  will  cram  the  stamps  down  their  throat  with 
the  end  of  my  sword,"  said  an  officer  at  New  York.  Governor  Ber- 
nard wanted  soldiers  sent  to  Boston  to  enforce  submission ;  so  did 
Hutchinson  and  "  Governor  Oliver."  The  Governor  of  New  York 
thought,  "  if  Judges  be  sent  from  England,  with  an  able  attorney- 
general  and  solicitor-general  to  make  examples  of  some  very  few,  the 
Colony  will  remain  quiet."  ^ 

In  1768  John  Hancock  was  arrested  at  Boston  —  for  a  "  misde- 
meanor ;  "  I  suppose,  "  obstructing  an  officer,"  or  some  such  of- 
fencc.2  The  government  long  sought  to  procure  indictments  against 
James  Otis  —  who  was  so  busy  in  fencing  out  despotism  —  Samuel 
Adams,  and  several  other  leading  friends  of  the  colony.  But  I  sup- 
pose the  judge  did  not  succeed  in  getting  his  brother-in-law  put  on 
the  grand-jury,  and  so  the  scheme  fell  through.  No  indictment  for 
that  "  misdemeanor "  then.  Boston  had  the  right  men  to  do  any 
thing  for  the  crown,  but  tliey  did  not  contrive  to  get  upon  the 
grand-jury. 

The  King,  it  was  George  HI.,  in  his  parliament,  spoke  of  the 
l^atriots  of  Boston,  as  "those  turbulent  and  seditious  persons."  In 
the  House  of  Commons,  Stanley  called  Boston  an  "  insolent  town;" 
its  inhabitants  "must  be  treated  as  aliens;"  its  "charter  and  laws 

'  5  Bancroft,  358.  "  C  Bancroft,  213. 


DESPOTISM   IN   NEW   ENGLAND.  63 

must  bo  SO  changed  as  to  give  the  King  the  appointment  of  the 
Coancil,  and  to  the  sheriffs  the  sole  poioer  of  returning  jurors  ;''^  then 
the  Stamp  Act  could  be  carried  out,  and  a  revenue  raised  without 
the  consent  of  the  people.  The  plan  was  admirably  laid  ;  an  excellent 
counsel  I  Suppose,  as  a  pure  conjecture,  an  hypothesis  of  illustra- 
tion—  that  there  were  in  Boston  a  fugitive  slave  bill  court,  eager  to 
kidnap  men  and  so  gain  further  advancement  from  the  slave  power, 
which  alone  distributes  the  federal  offices;  suppose  the  court  should 
appoint  its  creatures,  relatives,  nay,  its  uterine  brother  —  its  brother  in 
birth  —  as  fugitive  slave  bill  commissionejis  to  hunt  men  ;  and  then 
should  get  its  matrimonial  brother  —  its  brother-in-law  —  on  the 
grand-jury  to  indict  all  who  resisted  the  fugitive  slave  bill  I  You  see, 
gentlemen,  what  an  admirable  opportunity  there  would  be  to  accom- 
plish most  manifold  and  atrocious  wickedness.  This  supposed  case 
exactly  describes  what  was  contemplated  by  the  British  authorities 
in  the  last  century  I  Only,  Gentlemen,  it  was  so  unlucky  as  rwt  to 
succeed;  nay.  Gentlemen,  as  to  fail  —  then!  Such  accidents  will 
happen  in  the  best  of  histories  I 

It  was  moved  in  Parliament  to  address  the  king  "to  bring  to  con- 
dign punishment"  such  men  as  Otis  and  Adams  and  Hancock. 
Chief  Justice  Hutchinson  declared  Samuel  Adams  "  the  greatest  in- 
cendiary in  the  king's  dominions^  Hutchinson  was  right  for  once. 
Samuel  Adams  lit  a  fire  which  will  burn  on  Boston  Common  on  the 
Fourth  day  of  next  July,  Gentlemen,  and  on  many  other  commons 
besides  Boston.  Aye,  in  the  heart  of  many  million  men  —  and  keep 
on  burning  long  after  Hutchinson  ceases  to  be  remembered  with  hate, 
and  Adams  with  love.  "  The  greatest  incendiary  I "  so  he  was. 
Hutchinson  also  thought  there  must  be  "  an  Abridgment  of  what  are 
called  English  Liberties,"  doubtless  the  liberty  of  speaking  in  Faneuil 
Hall,  and  other  meeting-houses  was  one  "  of  what  are  called  English 
Liberties  "  that  needed  speedy  abridgment.  He  wished  the  law  of 
treason  to  be  extended  so  that  it  might  catch  all  the  patriots  of  Bos- 
ton by  the  neck.  He  thought  it  treasonable  to  deny  the  authority  of 
Parliament.!  Men  suspected  of  "  misdemeanors  "  were  to  be  sent  to 
England  for  trial !  What  a  "  trial "  it  would  have  been  —  Hancock 
and  Adams  in  AVestminster  Hall  with  a  jury  packed  by  the  govern- 
ment ;  Thurlow  acting  as  Attorney- General,  and  another  Thurlow 
growling  on  the  bench  and  expecting  further  office  as  pay  for  fresh 
injustice  I  Truly  there  would  have  been  an  "abridgment  of  English 
Liberties."  Gentlemen  of  the  Jury,  Mr.  Phillips  and  Mr.  Higginson 
in  this  case  are  charged  with  "  obstructing  an  officer."  Suppose  they 
were  sent  to  South  Carolina  to  be  tried  by  a  jury  of  Slave-holders,  or 

*  6  Bancroft,  250,  251,  291 ;   Sabine's  Loyalists,  207,  et  al. 


64  CORRUPTION    OF   THE   JUDICIARY. 

still  worse,  without  change  of  place,  to  be  tried  by  a  court  deadly 
hostile  to  freedom,  —  wresting  law  and  perverting  justice  and  "  enlarg- 
ing testimony,"  personally  inimical  to  these  gentlemen  ;  suppose  that 
the  Slave-hunter  whose  "process"  was  alleged  to  be  resisted,  was 
kinsman  to  the  court,  and  the  judge  had  a  near  relation  put  on  the 
jury  —  what  opportunity  would  there  be  for  justice  ;  what  expectation 
of  it?  Gentlemen  of  the  Jury^  that  is  the  state  of  things  which  the 
despots  of  England  wanted  to  bring  about  by  sending  Hancock  and 
Adams  over  seas  for  trial!  Bernard,  Oliver,  and  Hutchinson  were 
busy  in  getting  evidence  against  the  Patriots  of  New  England, 
especially  against  Adams.  Affidavits  were  sent  out  to  England  to 
prove  that  he  was  a  fit  subject  to  be  transported  for  "trial"  there. 
And  an  old  statute  was  found  from  the  enlightened  reign  of  Henry 
VHI.  authorizing  that  mode  of  trial  in  case  of  such  "  misdemeanor." 
Commissary  Chew  wished  that  two  thirds  of  the  lawyers  and 
printers  were  sliipped  off  to  Africa  "  for  at  least  seven  years."  Edes 
and  Gill,  patriotic  printers  in  Boston,  and  "  all  the  authors  of  number- 
less treasonable  and  seditious  writings,"  were  to  go  with  them,^  They 
were  all  guilty,  very  guilty  I  Gentlemen  of  the  Jury,  they  committed 
"  misdemeanors,"  they  "  obstructed  officers,"  they  resisted  the  process 
of  despotism  I     But  alas  — 

"  The  Dog  It  was  that  died." 

Edes  and  Gill  never  saw  Africa ;  the  patriotic  lawyers  and  printers 
made  no  reluctant  voyage  to  England. 

"  The  Dog  it  was  that  died." 

Bernard,  Hutchinson,  Oliver,  and  their  coadjutors  went  over  the 
seas  for  punishment  after  being  tried  at  home  by  a  Law  older  than  the 
statute  of  Henry  VHI. ;  a  law  not  yet  repealed,  Gentlemen,  the 
Higher  Law  which  God  wrote  ineflf'aceablyin  the  hearts  of  mankind ; 
and  indignant  America  pronounced  sentence — Tories,  Traitors! 
Commissary  Chew  learned  a  lesson  at  Saratoga  in  1777.  And  the 
Franklins,  the  Mayhews,  the  Hancocks,  the  Adamses,  they  also  were 
tried  at  home,  and  not  found  wanting;  and  the  verdict!  Gentlemen 
of  the  Jury,  you  know  what  verdict  America  has  pronounced  on 
these  men  and  their  kinsfolk!  There  is  only  one  spot  in  the  United 
States  where  the  Hutchinsons,  the  Olivers,  the  Bernards  are  honored, 
—  that  is  where  the  Adamses,  the  Hancocks,  the  Mayhews,  and  the 
Franklins,  with  the  principles  of  justice  they  gave  theii'  lives  to,  are 
helfl  in  contempt!     "Where  is  the  one  spot,  that  sp<x'k  of  foreign  dirt 

'  6  Bancroft,  2.'30,  251,  291 ;  Sabine's  Loyalists,  207,  el  al. 


TRIAL   BY   JURY.  65 

in  the  clean  American  garden  ?  It  is  where  the  Democratic  Herod 
and  the  Whig  Pihite  are  made  friends  that  tlicy  may  crucify  the  Son 
of  Man,  the  Desire  of  all  nations,  the  Spirit  of  Humanity  —  it  is  the 
court  of  the  Fugitive  Slave  Bill  judges,  the  Gabbatha  of  the  Kid- 
nappers.    Look  there! 

In  1765  it  was  too  late  to  conquer  America.  What  Andros  and 
Randolph  could  accomplish  in  1686  with  their  sixty  soldiers,  could 
not  be  done  in  1768  with  all  the  red  coats  Britain  could  send  out : 
nor  in  1778  with  all  the  Hessians  she  could  purchase.  The  19th  of 
April,  1689,  foretold  another  19th  of  April  —  as  that  many  to-mor- 
rows after  to-day!  In  the  House  of  Lords  Camden  and  Pitt  thought 
Parliament  not  omnipotent.^  Samuel  Adams  declared  "  Acts  of  Par- 
liament against  natural  equity  are  void ; "  prayed  that  "  Boston  might 
become  a  Christian  Sparta,"  and  looked  to  the  Law  of  an  Omnipo- 
tence somewhat  higher  than  a  king  or  a  court.  He  not  only  had 
Justice,  but  also  the  People  on  his  side.  What  came  of  that  last 
attempt  of  the  last  king  of  New  England  to  establish  a  despotism 
here  ?  The  same.  Gentlemen,  which  will  ultimately  come  of  all  such 
attempts. 

Gentlemen  of  the  Jury,  there  is  one  great  obstacle  which  despotism 
has  found  in  Anglo-Saxon  lands,  steadily  opposing  its  steady  attempts 
to  destroy  the  liberties  of  the  People,  It  is  easy  for  the  controlling 
power,  which  represents  the  Centripetal  Tendency  of  the  Nation,  to 
place  its  corrupt  and  servile  creatures  in  judicial  offices,  vested  with 
power  to  fine,  to  imprison,  and  to  kill ;  it  is  then  easy  for  them  to  de- 
termine on  the  destruction  of  all  such  friends  of  Justice  and  Humanity 
as  represent  the  Centrifugal  Tendency  of  the  Nation  ;  and  with  such 
judicial  instruments  it  is  not  difficult  to  wrest  and  pervert  law  in 
order  to  crush  the  Patriots,  and  construct  a  word  into  "  Treason,"  or 
"  evincing  express  approbation  "  into  a  "  Misdemeanor,"  "  resisting  an 
officer."  And  if  the  final  decision  rested  with  such  a  court,  it  would 
be  exceeding  easy  to  make  way  with  any  man  whom  the  judge's 
private  malignity  or  the  public  vengeance  of  his  master,  wished  to 
smite  and  kill.  But  in  the  Anglo-Saxon  people  there  is  one  institu- 
tion, old,  venerable,  and  well-beloved,  which  has  stood  for  two  thou- 
sand years,  the  great  Fortress  of  Freedom.  Thank  God,  Gentlemen, 
it  still  stands.  Neither  British  Kings  nor  American  Slave-drivers  have 
yet  brought  it  to  the  ground.     Of  this  I  must  now  say  a  word. 

>  IG  Pari.  Hist.  168,  195,  658. 
6* 


66  '  TRIAL  BY  JURY. 


III.     Of  the  Great  Safeguard  which  has  been  found  serviceable 

IN    PROTECTING   DEMOCRATIC    INSTITUTIONS    AND    THE    RlGHTS   OF   MaN 
THEY   ARE    DESIGNED    TO    DEFEND. Of    THE    TrIAL   BY   JuRY. 

This  is  an  invaluable  protection  against  two  classes  of  foes  to  the 
welfare  of  mankind. 

1.  Against  such  as  would  commit  offences  upon  the  property  or 
persons  of  men,  without  law  and  contrary  to  the  form  of  law, — 
against  common  criminals  of  all  denominations.  Against  such  it  is 
a  sword  —  to  resist  and  punish. 

2.  Against  such  as  w^ould  commit  offences  upon  the  property  or 
persons  of  men,  with  the  form  of  law  and  by  means  of  its  machinery, 
—  against  unjust  legislators,  corrupt  Judges,  and  wicked  magistrates; 
against  such  it  is  a  shield  defending  the  public  head. 

In  all  the  States  of  Anglo-Saxon  origin  there  are  two  great  popu- 
lar institutions  —  Democratic  Legislation  and  Democratic  Adminis- 
tration of  Law. 

In  the  process  of  its  historical  development  the  first  has  come  to 
the  representative  form  of  democratic  legislation, — popular  law- 
making by  a  body  of  sworn  delegates  met  in  an  Assembly,  local  or 
federal,  subject  to  a  constitution,  written  or  only  traditional,  which  is 
the  People's  Power  of  Attorney,  authorizing  them  to  do  certain  mat- 
ters and  things  pertinent  to  law-making.  These  are  a  Jury  of  gen- 
eral Law-makers. 

In  its  process  of  historical  development,  the  second  has  also 
come  to  a  representative  form,  that  of  democratic  application  of  law, 
popular  law-applying,  by  a  body  of  sworn  delegates,  that  is  a  Court, 
subject  to  a  constitution  and  laws,  written  or  oniy  traditional,  which 
are  the  People's  Power  of  Attorney  authorizing  them  to  do  certain 
matters  and  things  pertinent  to  law-applying.  These  are  a  Jury  of 
special  Law-appliers. 

Neit,h(,'r  of  them  as  yet  has  reached  its  perfect  and  ultimate  form; 
both  are  still  in  a  state  of  transition.  These  two  are  the  most  valu- 
able institutional  safeguards  against  unorganized  selfishness  in  the 
community,  —  against  tliicves,  robbers,  murderers,  traitors,  and  the 
like  ;  against  the  organized  selfishness  which  gets  info  places  of  dele- 
gated power,  and  would  misuse  tlie  Form  of  law  so  as  to  prevent  the 
Peo[)le  from  attaining  the  Purpose  of  law. 

There  is  also  a  body  of  men  intermediaic-  between  the  two,  —  the 
Law-l*iX|)laiiMTS,  the  .fudges.  Speaking  theoretically  they  are  not 
ultimately 'either  Law-makers  or  Law-ai)j)liers,  yet  practically,  in  their 
legitimate  function,  they   certainly   have  nmch  to  do  with  both  the 


THE    GOOD   JUDGE.  67 

making  and  applying  of  laws.  For  it  is  their  business,  not  only  to 
preside  at  all  trials,  and  determine  many  subordinate  questions  of 
mere  form  to  expedite  the  process,  but  also  from  the  whole  mass  of 
laws,  oral  or  written,  statutes  and  customs,  to  select  such  particular 
laws  as  they  think  require  special  attention,  —  this  is  like  the  work 
of  law-makers ;  and  also,  in  their  charges  to  the  grand  and  petty 
Juries,  to  suggest  the  execution  thereof  in  such  cases  as  the  times 
may  bring,  —  this  is  like  the  work  of  the  law-appliers. 

The  good  judge  continually  modifies  the  laws  of  his  country  to  the 
advantage  of  mankind.  He  leaves  bad  statutes,  which  aim  at  or 
would  promote  injustice,  to  sleep  till  themselves  become  obsolete,  or 
parries  their  insidious  thrusts  at  humanity;  he  selects  good  statutes 
which  enact  natural  Justice  into  positive  law;  and  mixes  his  own 
fresh  instincts  of  humanity  witli  the  traditional  institutions  of  the  age. 
All  this  his  official  function  requires  of  him  —  for  his  oath  to  keep 
and  administer  the  laws  binds  him  to  loolc  to  the  Purpose  of  Law  — 
which  is  the  Eternal  .Justice  of  God,  —  as  well  as  to  each  special 
statute.  Besides,  after  the  Jury  declares  a  man  guilty,  the  Judge  has 
the  power  to  fix  the  quantity  and  sometimes  the  quality  of  his  pun- 
ishment. And  the  discretion  of  a  great  noble  man  will  advance 
humanity. 

In  this  way  a  good  Judge  may  do  a  great  service  to  mankind,  and 
correct  the  mistakes,  or  repel  the  injustice  of  the  ultimate  makers  and 
appliers  of  law,  and  supply  their  defects.  Thus  in  England  those 
eminent  Judges,  Hale,  Somers,  Hobart,  Holt,  Camden,  INIansfield, 
and  Brougham,  have  done  large  service  to  mankind.  Each  had  his 
personal  and  official  faults,  some  of  them  great  and  glaring  faults  of 
both  kinds,  but  each  in  his  way  helped  enact  natural  Justice  into 
positive  law,  and  so  to  promote  the  only  legitimate  Purpose  of 
human  legislation,  securing  Natural  Rights  to  all  men.  To  such 
Judges  mankind  owes  a  quite  considerable  debt. 

But  in  America  the  Judge  has  an  additional  function ;  he  is  to 
determine  the  Constitutionality  of  a  law.  For  while  the  British  King 
and  Parliament  claim  to  be  legislatively  omnipotent,  supreme,  the 
Ultimate  human  source  of  law,  the  Living  Constitution  of  the  realm, 
and  therefore  themselves  the  only  Norm  of  law,  —  howsoever  ill- 
founded  the  claim  may  be,  —  in  America  it  is  the  People,  not  their 
elected  servants,  who  are  the  Ultimate  human  source  of  law,  the 
Supreme  Legislative  power.  Accordingly  the  People  have  prepared 
a  written  Constitution,  a  Power  of  Attorney  authorizing  their  ser- 
vants to  do  certain  matters  and  things  relating  to  the  government  of 
the  nation.  This  constitution  is  the  human  Norm  of  law  for  all  the 
servants  of  the  people.  So  in  administering  law  the  Judge  is  to  ask, 
Is  the  statute  constitutional  ?  does  it  square  with  the  Norm  of  law 


68  TRIAL   BY  JURY. 

which  the  People  have  laid  down  ;  or  have  the  legislative  servants  ex- 
ceeded their  Power  of  Attorney,  and  done  matters  and  things  which 
they  were  not  empowered  to  do  ?  In  deciding  this  question,  the  Judge 
is  to  consider  not  merely  the  Provisional  Means  which  the  Constitution 
designates,  but  also  the  Ultimate  Purpose  thereof,  the  Justice  and  Lib- 
erty which,  as  its  preamble  declares,  it  expressly  aims  at,  and  which 
are  also  the  ideal  End  of  all  sound  legislation. 

There  is  no  country  in  the  world  where  a  great  man  has  so  noble  a 
place  and  opportunity  to  serve  mankind  as  in  America. 

But  a  wicked  Judge,  Gentlemen,  may  do  great  harm  to  mankind, 
as  I  have  already  most  abundantly  shown.  For  we  have  inherited 
a  great  mass  of  laws.  —  customary  or  statutory  ;  the  legislature 
repeals,  modifies,  or  adds  to  them  ;  the  Judge  is  to  expound  them,  and 
suggest  their  application  to  each  special  case.  The  Jury  is  to  apply 
or  refuse  to  apply  the  Judge's  "law."  In  all  old  countries,  some  of 
these  laws  have  come  from  a  barbarous,  perhaps  even  from  a  savage 
period ;  some  are  the  work  of  tyrants  who  wrought  cruelly  for  their 
own  advantage,  not  justly,  or  for  the  good  of  mankind;  some  have 
been  made  in  haste  and  heat,  the  legislature  intending  to  do  an  unjust 
thing.  Now  an  unjust  Judge  has  great  power  to  select  wicked  stat- 
utes, customs,  or  decisions  ;  and  in  no  country  has  he  more  power  for 
evil  than  in  the  federal  courts  of  the  United  States.  For  as  in  Eng- 
land, when  the  King-power  makes  a  wicked  law,  the  Judge,  who  is 
himself  made  by  that  same  power,  may  declare  it  just,  and  execute  the 
heinous  thing ;  so  in  America,  when  the  Slave  power  enacts  a  wicked 
statute,  contrary  to  the  purpose  of  the  constitution  and  to  the  natu- 
ral justice  of  God,  the  Judge,  who  is  the  creature  of  that  same  power, 
may  declare  it  constitutional  and  binding  on  all  the  People  who  made 
the  constitution  as  their  Power  of  Attorney.  Thus  all  the  value  of 
the  constitution  to  check  despotism  is  destroyed,  and  the  Fortress  of 
Freedom  is  betrayed  into  the  hands  of  the  enemies  of  liberty! 

But  barbarous  laws  must  not  be  applied  in  a  civilized  age ;  nor 
unjust  laws  enforced  by  righteous  men.  While  left  unrepealed,  a  fair 
and  conscientious  Jury  will  never  do  injustice,  though  a  i)articular 
statute  or  custom  demand  it,  and  a  wicked  Judge  insist  upon  the 
wrong;  for  they  feel  the  moral  instinct  of  human  nature,  and  look  not 
merely  to  the  letter  of  a  particular  enactment,  but  also  to  the  spirit 
and  general  ])urpose  of  law  itself,  which  is  justice  between  man  and 
man.  'I'lic  wicked  Judge,  looking  only  to  the  power  which  raised  him 
to  his  j)lace,  and  may  lift  him  higher  still,  —  not  to  that  other  Hand 
which  JH  over  all, —  or  consulting  his  own  meanness  of  nature,  selects 
the  wicked  laws,  and  makes  a  wicked  application  thereof.  Thus  in 
America,  under  plea  of  serving  the  people,  he  can  work  most  hideous 
wrong. 


GOOD    AND   BAD   JUDGES.  69 

Besides,  the  Judges  are  lawyers,  with  the  technical  training  of 
lawyers,  with  the  disposition  of  character  which  comes  from  their 
special  training  and  profession,  and  which  marks  the  manners,  the 
language  and  looi\s  of  a  lawyer.  They  have  the  excellence  of  the 
lawyer,  and  also  his  defects.  Commonly  they  are  learned  in  their 
profession,  acute  and  sharp,  circumspect,  cautious,  skilful  in  making 
nice  technical  distinctions,  and  strongly  disposed  to  adhere  to  historical 
precedents  on  the  side  of  arbitrary  power,  rather  than  to  obey  the 
instinctive  promptings  of  the  moral  sense  in  their  own  conscious- 
ness. Nay,  it  seems  sometimes  as  if  the  moral  sense  became  extinct, 
and  the  legal  letter  took  the  place  of  the  spirit  of  Justice  \\'inch  gives 
life  to  the  People.  So  they  look  to  the  special  statute,  its  technical 
expositions  and  applications,  but  not  to  Justice,  the  ultimate  Purpose 
of  human  law  ;  they  preserve  the  means  and  miss  the  end,  put  up 
the  bars  in  the  nicest  fashion,  and  let  the  cattle  perish  in  their  pen. 
Like  the  nurse  in  the  fable,  they  pour  out  the  baby,  and  carefully 
cherish  the  wooden  bath-tub !  The  Letter  of  the  statute  is  the  Idol 
of  the  Judicial  Den,  whereunto  the  worsMpper  offers  sacrifices  of 
human  blood.  The  late  Chief  Justice  Parker,  one  of  the  most  humane 
and  estimable  men,  told  the  Jury  they  liad  nothing  to  do  u'ith  the  liarsh- 
ness  of  the  statute  !  but  must  execute  a  law,  however  cruel  and  unjust, 
because  somebody  had  made  it  a  law  I  How  often  Juries  refuse  to 
obey  the  statute  and  by  its  means  to  do  a  manifest  injustice;  but 
how  rarely  does  a  Judge  turn  off  from  the  wickedness  of  the  statute  to 
do  Justice,  the  great  Purpose  of  human  law  and  human  life!  Gen- 
tlemen, I  once  knew  a  democratic  judge  —  a  man  with  a  noble  mind, 
and  a  woman's  nicer  sense  of  right  —  who  told  the  Jury,  "  Such  is  the 
law,  such  the  decisions ;  such  would  be  its  application  to  this  particu- 
lar case.  But  it  is  unjust;  — it  would  do  a  manifest  and  outrageous 
wrong  if  thus  applied.  You  as  Jurors  are  to  do  Justice  by  the  law, 
not  injustice.  You  ivill  bring-  in  a  verdict  according  to  your  con- 
science.'''' They  did  so.  Gentlemen,  I  should  not  dare  tell  you  that 
Judge's  name.  It  would  greatly  injure  his  reputation.  God  knows 
it  —  for  there  is  a  Higher  Law. 

When  the  New  York  Convention  assembled  in  1846  to  revise  the 
constitution  of  that  State,  some  powerful  men  therein  felt  the  evil  of 
having  the  Court  of  last  Appeal  consist  wholly  of  lawyers.  Mr.  Rug- 
gles  thought  the  judges  who  reexamine  the  decisions  and  pronounce 
the  final  judgment  in  disputed  cases,  and  determine  the  constitution- 
ality of  laws,  should  be  men  who  are  "  brought  into  direct  contact 
with  the  people  and  their  business."  He  wished  that  of  the  eight 
judges  of  this  a'ppellate  Court,  four  should  be  Justices  of  the  Su- 
preme Court,  and  four  more  should  be  elected  by  the  people  on  a 
general  ballot,  thus  securing  a  popular  clement  in  that  highest  Court. 


70  TRIAL    EY   JURY. 

By  this  popular  element,  representing  the  instinctive  Justice  of 
Humanity,  he  hoped  to  correct  that  evil  tendency  of  professional 
men  which  leads  them  away  "  from  the  just  conclusions  of  natural 
reason  into  the  track  of  technical  rules  inapplicable  to  the  circum- 
stances of  the  case,  and  at  variance  with  the  nature  and  principles  of 
our  social  and  political  institutions." ^  "Such  judges,"  said  another 
lawyer,  "would  retain  more  of  the  great  general  principles  of  moral 
justice,  .  .  .  the  impulses  of  natural  equity,  such  as  .  .  .  would 
knock  off  the  rough  corners  of  the  common  law  and  loosen  the  fetters 
of  artificial  and  technical  equity."  ^ 

Commonly  in  America,  as  in  England,  for  judges  the  Federal 
Government  appoints  lawyers  who  have  done  some  party  service,  or 
are  willing  to  execute  the  designs  of  the  great  ruling  Power,  the  Slave- 
holders, regardless  alike  of  the  interests  of  the  People  and  the  protes- 
tations of  the  Conscience  of  Mankind.^  You  know  how  Hardwicke 
and  Thurlow  got  their  office  in  England,  how  they  filled  it,  and  what 
additional  recompense  followed  each  added  wickedness.  Need  I 
mention  the  name  of  Americans  with  a  similar  history  ?  Gentlemen, 
I  pass  it  by  for  the  present. 

Still  further,  these  judges  thus  appointed  become  familiar  with 
fraud,  violence,  cruelty,  selfishness,  —  refined  or  brutal,  —  which  comes 
before  them  ;  they  study  the  technicalities  of  the  statutes,  balance  the 
scruples  of  advocates ;  they  lose  their  fresh  intuitions  of  justice,  be- 
coming more  and  more  legal,  less  and  less  human,  less  natural  and 
more  technical;  their  eye  is  microscopic  in  its  niceness  of  discrimina- 
tion, microscopic  also  in  its  narrowness  of  range.  They  forget  the 
universality  of  justice,  —  the  End  which  laws  should  aim  at;  they 
direct  their  lynx-eyed  attention  to  the  speciality  of  the  statutes  which 
is  only  the  Means,  of  no  value  save  as  conducing  to  that  end.  Their 
understanding  is  sharp  as  a  mole's  eye  for  the  minute  distinctions  of 
the  technicalities  of  their  craft;  but,  as  short-sighted  as  the  mole,  they 
cannot  look  at  justice.  So  they  come  to  acknowledge  no  obligation 
but  the  legal,  and  know  no  law  except  what  is  written  in  Black 
Letter  on  parchment,  printed  in  statute-books,  reported  in  decisions; 
the  Law  written  by  God  on  the  soul  of  man  they  know  not,  only  the 
statute  and  decision  bound  in  pale  sheepskin.  In  the  logic  of  legal 
deduction  —  technical  inference  —  they  forget  the  intuition  of  con- 
science: not  What  is  right?  but  What  is  law?  is  the  question,  and 
they  pay  the  same  deference  to  a  wicked  statute  as  a  just  one.     So 


'  Debates  in  Nuw  York  Convention,  371,  et  al. 

'  .Jorfl.an's  Spoceli,  ihitL,  447,  et  al.     See  also  Mr.  Stow's  Remarks,  473,  and  Mr. 
StepIicnH*,  474,  et  at.     Yet  all  these  four  speakers  were  lawyers. 
^  Iliidreth's  Despotism  in  Ameriea  (1854),  2C3,  cl  al. 


HISTORICAL   DEVELOPMENT    OF   THE   JURY.  71 

the  true  ]\[u.ssulinan  values  the  absurdities  of  the  Koran  as  much  as 
its  noblest  wisdom  and  tenderest  humanity. 

Such  a  man  so  appointed,  so  disciplined,  will  administer  the  law 
fairly  enough  in  civil  cases  between  party  and  party,  where  he;  has  no 
special  interest  to  give  him  a  bias  —  for  he  cares  not  whether  John 
Doe  or  Richard  Roe  gain  the  parcel  of  ground  in  litigation  before 
him.  But  in  criminal  cases  he  leans  to  severity,  not  mercy ;  he  sus- 
pects the  People ;  he  reverences  the  government.  In  political  trials 
he  never  forgets  the  hand  that  feeds  him,  —  Charles  Stuart,  George 
Guelph,  or  the  Slave  Power  of  America. 

These  things  being  so,  in  such  trials  you  see  the  exceeding  value  of 
the  jury,  who  are  not  Office-holders,  under  obligation  to  the  hand 
that  feeds  them  ;  not  Office-seekers,  willing  to  prostitute  their  faculties 
to  the  service  of  some  overmastering  lust ;  not  lawyers  wonted  to 
nice  technicalities ;  not  members  of  a  class,  with  its  special  discipline 
and  peculiar  prejudices  ;  but  men  with  their  moral  instincts  normally 
active,  and  unsophisticated  humanity  in  their  hearts.  Hence  the 
great  value  of  the  jury  in  criminal  trials. 

Gentlemen,  you  are  the  jurors  in  this  case,  to  decide  between  me 
and  the  government.  Between  the  government  and  me!  no.  Gentle- 
men, between  the  Fugitive  Slave  Bill  and  Humanity.  You  know 
the  Function  of  the  court  —  the  manner  of  the  Judges'  appoint- 
ment—  the  services  they  are  expected  to  render  in  cases  like  this, 
the  services  they  have  already  rendered. 

Let  me  speak  of  the  Function  of  the  Jury.  To  do  that,  I  must 
say  a  few  words  of  its  Historical  Development.  I  must  make  it  very 
brief  and  sketchy.  Here  I  shall  point  out  six  several  steps  in  the 
successive  development  of  popular  Law-making  and  Law-apply- 
ing. 


1.  In  the  barbarous  periods  of  the  Teutonic  Family,^  it  seems  the 
"  whole  People  "  came  together  at  certain  regular  seasons  to  transact 
the  business  of  the  nation.  There  was  also  a  meeting  of  the  inhabi- 
tants of  each  district  or  neighborhood  at  stated  times,  —  a  "  regular 
meeting;"  and  sometimes  a  special  meeting  to  provide  for  some 
emergency  —  a  "called  meeting."  If  one  man  had  wronged  another 
the  matter  was  inquired  into  at  those  popular  meetings.  One  man 
presided  —  chosen  for  the  occasion.  In  the  early  age  it  appears  he 
was  a  priest,  afterwards  a  noble,  or  some  distinguished  man,  selected 
on  tlfe  spot.  The  whole  people  investigated  the  matter,  made  the 
law  —  often  an  ex  post  facto  IsiW,  —  applied  it  to  the  special  case,  and 

^  By  this  term  I  mean  all  the  nations  with  language  akin  to  the  German. 


72  TRIAL   BY  JURY. 

on  the  spot  administered  the  punishment  —  if  corporeal,  or  decreed 
the  recompense  —  if  pecuniary.  The  majority  carried  the  day.  Thus 
at  first  the  Body  of  People  present  on  the  occasion  were  the*  law- 
makers, the  law-appliers,  and  law-executors.     Each  law  was  special 

—  designed  for  the  particular  case  in  hand,  retrospective  for  ven- 
geance more  than  prospective  for  future  welfare. 

2.  Then  in  process  of  time,  there  came  to  be  a  body  of  laws  —  fixed 
and  understood  by  the  People.  Partly,  these  came  from  the  customs 
of  the  People,  and  represented  past  life  already  lived ;  but  partly,  also, 
from  the  decrees  of  the  recognized  authorities  —  theocratic,  monarchic, 
aristocratic,  democratic  —  representing  the  desire  for  a  better  life,  a 
rule  of  conduct  for  the  future.  Then  at  their  meetings,  to  punish  an 
offender  the  people  did  not  always  make  a  new  law,  they  simply  used 
what  they  found  already  made.  They  inquired  into  the  fact,  the 
deed  done,  the  law,  and  applied  the  general  law  to  the  special  fact, 
made  their  decree  and  executed  iti  Thus  extemporaneous  Making  of 
law  for  ihe  particular  case,  gradually  passed  away,  and  was  succeeded 
.by  the  extemporaneous  Declaration  of  the  law  previously  made,  and 
its  Application  to  the  matter  in  hand. 

3.  By  and  by  it  was  found  inconvenient  for  a  multitude  to  assemble 
and  make  the  law^s,  so  a  body  of  select  men  took  a  more  special 
charge  of  that  function.  Sometimes  a  chief,  or  king,  usurped  this  for 
himself;  or  men  were  chosen  by  the  people,  and  took  an  oath  for  the 
faithful  discharge  of  their  trust.  Thus  came  popular  law-making  by 
sworn  delegates,  representatives  of  the  people,  who  had  a  certain 
special  power  of  attorney,  authorizing  them  to  make  laws.  These 
might  be  Priests  —  as  at  the  beginning;  or  Nobles  of  priestly  stock,  as 
at  the  next  stage  ;  or  Military  Chiefs  —  as  in  all  times  of  violence ;  or 
powerful  Private  men,  —  summoned  from  the  nation,  of  their  own 
accord  undertaking  the  task,  or  chosen  by  the  various  neighborhoods, 

—  the  whole  process  seems  to  have  been  irregular  and  uncertain,  as 
indeed  it  must  be  amongst  rude  people. 

So  at  that  time  there  were  two  sources  of  law-m.aking. 

(1.)  The  unorganized  People  —  the  primary  source,  whose  uncon- 
scious life  flows  in  certain  channels  and  establishes  certain  customs, 
rules  of  conduct,  obeyed  before  they  are  decreed,  without  any  formal 
enactment.     These  were  laws  de  facto. 

(2.)  The  organized  Delegates  —  priestly,  kingly,  nobilitary,  or  war- 
like—  Ihe  secondary  source.  These  made  statute  laws.  As  this  was 
a  self-conscious  and  organized  body,  having  an  object  distinctly  set 
before  its  mind  and  devising  means  for  its  purposes,  it  easily  appro- 
priated to  itself  the  chief  part  of  the  business  of  law-making.  Statute 
laws  became  more  and  more  numerous  and  important;  tliey  were  the 
principal  —  the  customs  were  only  subsidiary,  laws  de  Jure,  enacted 


HISTORICAL   DEVELOPMENT   OF   TUE   JURY.  73 

before  they  arc  obeyed  by  the  People.  Still  new  customs  continued  to 
flow  from  the  primitive  source  of  legislation,  the  People,  and  of  course 
took  new  forms  to  suit  the  conditions  of  national  life. 

4.  Still  the  people  came  together  to  apply  the  laws — customary  or 
enacted, — to  the  special  cases  which  occurred.  There  were  fixed  peri- 
ods when  they  assembled  without  notice  given,  —  "  regular  law-days ; " 
and  if  an  emergency  occurred,  they  were  summoned  on  "  extraordinary 
law-days."  Here  wrongs  between  party  and  ])arty,  and  offences  against 
the  public,  were  set  right  by  the  "  Country,"  the  "  Body  of  the  county," 
that  is,  by  the  bulk  of  the  population.     The  majority  carried  the  day. 

5.  At  length  it  was  found  inconvenient  for  so  large  a  body  to  inves- 
tigate each  particular  case,  or  to  determine  what  cases  should  be  pre- 
sented for  investigation. 

(1.)  So  this  preliminary  examination  was  delegated  to  a  smaller  body 
of  men,  sworn  to  discharge  the  trust  faithfully,  who  made  inquiry  as 
to  offences  committed,  and  reported  the  criminals  for  trial  to  the  full 
meeting,  the  actual  "  Body  of  the  country."  Here,  then,  is  the  first 
organized  and  sworn  "Jury;"  "the  grand  inquest;"  —  here  is  pop- 
ular Indictment  by  delegates. 

(2.)  Then  it  was  found  inconvenient  for  a  large  body  —  the  whole 
country  —  to  investigate  the  cases  presented.  Men  were  busy  with 
their  own  work,  and  did  not  wish  to  appear  and  consume  their  time. 
So  a  smaller  body  of  men  was  summoned  to  attend  to  any  special 
case  which  was  presented  by  the  Grand  Inquest.  These  also  were 
sworn  to  do  their  duty.  They  were  to  try  the  men  indicted.  Here 
is  Trial  by  sworn  delegates,  who  represent  the  Body  of  the  People. 
They  were  still  called  the  "  Country,"  as  any  spot  of  the  Atlantic  is 
the  "  Ocean."  Here  is  the  "  Trial  by  Jury."  They  must  be  taken 
from  the  neighborhood  of  the  parties  concerned  —  for  at  this  stage  the 
jurors  were  also  the  witnesses,  and  other  sworn  witnesses  were  not 
then  known.  All  the  Jurors  must  concur  in  the  vote  of  condemna- 
tion before  the  magistrate  could  hurt  a  hair  of  the  accused's  head. 

Still  after  the  people  had  delegated  their  law-making  to  one  body  of 
sworn  representatives,  and  the  twofold  function  of  law-applying,  by 
Indictment  and  Trial,  to  other  sworn  representatives,  there  was  yet  a 
a  great  concourse  of  people  attending  the  court  on  the  "  law-days  ;  " 
especially  when  important  matters  came  up  for  adjudication ;  then 
the  crowd  of  people  took  sides  with  Plaintiff  or  Defendant ;  with  the 
authorities  which  accused,  or  with  the  man  on  trial,  as  the  case  might 
be.  Sometimes,  when  the  Jury  acquitted,  the  people  tore  the  sus- 
pected man  to  pieces;  sometimes  when  the  Jury  condemned,  they 
showed  their  indignation  —  nay,  rescued  the  prisoner.  For  the  old 
tradition  of  actual  trial  by  the  "  Body  of  the  Country  "  still  prevailed. 
6.  At  length  the  Jurors  are   no  longer  the  witnesses  in  the  case. 

7 


74  TKIAL   BY   JURY. 

Others  testify  before  them,  and  on  the  evidence  which  is  offered,  the 
Grand-Jury  indict  or  not,  and  the  Trial  Jury  acquit  or  condemn.  Then 
the  Jurors  are  no  longer  taken  from  the  immediate  neighborhood  of  the 
party  on  trial,  only  from  his  district  or  county.  But  sworn  witnesses 
from  the  neighborhood,  depose  to  the  facts.  There  is  no  longer  a 
great  concourse  of  people  in  the  open  air,  but  the  trial  is  carried  on 
in  a  small  court  house,  yet  with  open  doors,  in  the  face  of  the  people, 
coram  popido  —  public  opinion  still  influences  the  Jury. 

As  most  of  the  Jurors  were  unlearned  men,  not  accustomed  to  intri- 
cate questions,  it  became  necessary  for  the  presiding  judge,  a  man 
of  nicer  culture,  to  prepare  rules  of  evidence  which  should  prevent 
the  matter  from  becoming  too  complicated  for  the  rustic  judgment. 
Thence  came  the  curious  and  strange  "rules  of  evidence"  which 
prevail  in  all  countries  where  trial  by  Jury  is  established,  but  are  un- 
known in  lands  where  the  trial  is  conducted  solely  by  experts,  edu- 
cated men.  But  as  the  mass  of  the  people,  as  in  America,  become 
,  well  informed,  the  old  rules  appear  ridiculous,  and  will  perish. 

The  number  of  sworn  judges  varies  in  different  tribes  of  the  Teu- 
tonic family,  but  as  twelve  has  long  been  a  sacred  number  with  the 
Anglo-Saxons,  that  was  gradually  fixed  for  the  Jury.  Twelve  consent- 
ing voices  are  indispensable  for  the  indictment  or  the  condemnation. 

Such  is  the  form  of  the  Jury  as  we  find  it  at  this  day.  The  other 
officers  have  also  undergone  a  change.  So,  Gentlemen,  let  me  give 
you  a  brief  sketch  of  the  Historical  Formation  of  the  Function  of  the 
Judge  in  nations  of  the  same  ethnological  origin.  Here  I  shall  men- 
tion four  steps. 

1.  At  the  meetings  of  the  people  to  make,  apply,  and  execute  the 
law,  some  one  must  preside  to  keep  order,  put  the  question,  and 
declare  the  vote.  He  was  the  Moderator  of  the  meeting.  At  first  it 
would  seem  that  some  important  man,  a  priest,  or  a  noble,  or  some 
other  wise,  distinguished,  or  popular  man,  performed  that  function. 
The  business  over,  he  dropped  into  his  private  place  again.  A  new 
one  was  chosen  at  each  meeting. 

2.  If  the  former  moderator  had  shown  skill  and  aptness,  he  was  cho- 
sen the  next  time;  again  and  again  ;  at  length  it  was  a  matter  of  course 
that  he  should  preside.  He  studied  the  matter,  and  became  "  expert 
in  all  the  manners  and  customs  of  his  nation."  This  happens  in  most 
of  the  New  l^higland  towns,  where  the  same  man  is  Moderator  at  the 
town-meetings  for  many  years  in  succession.  Men  love  to  walk  in  the 
path  they  have  once  trodden,  even  if  not  the  shortest  way  to  their  end. 

JJ.  When  the  nation  is  organized  more  artificially  and  the  laws 
chiefly  proceed  from  the  secondary  source,  the  government, —  elective 
or  usurpatory  —  a  judgfj  is  appointed  by  the  central  authority  to  visit 


niSTOPJCAL   DEVELOPMENT   OF   THE   JUDGE.  75 

the  districts  (comities)  and  assist  at  the  administration  of  justice. 
As  the  law  is  now  made  by  the  distant  delegates,  the  judge  they 
send  down  declares  and  explains  it  to  the  people,  for  they  have  not 
made  it  as  before  directly,  nor  found  it  ready-made,  an  old  inlierited 
custom,  but  only  receive  it  as  the  authorities  send  it  down  from  the 
Capitol.  The  law  is  ivriltcn  —  the  officer  can  read  while  they  have 
no  copy  of  the  law,  or  could  not  read  it  had  they  the  book.  Hence 
the  necessity  of  a  judge  learned  in  the  law.  Still  the  people  are  to 
apply  the  written  law  or  apply  it  not. 

Besides,  the  old  customs  remain,  the  unwritten  laws  of  the  people, 
which  the  judge  does  not  understand  so  well  as  they.  He  represents 
the  written  law,  the  assembly  the  unwritten  custom  or  tradition. 
The  judge  is  appointed  that  he  may  please  the  central  power;  the 
people  are  only  to  satisfy  such  moral  convictions  as  they  have.  There 
is  often  a  conflict  between  the  statute  and  the  custom,  a  conflict  of 
laws  ;  and  still  more  between  the  judge  and  the  jury  —  a  conflict  in 
respect  to  the  application  of  the  law. 

4.  Then  comes  the  critical  period  of  the  Trial  by  Jury.  For  the 
deputed  judge  seeks  to  enlarge  his  jurisdiction,  to  enforce  his  law, 
often  against  the  customs  and  the  consciences  of  the  People,  the  jury, 
who  only  seek  to  enlarge  Justice.  He  looks  technically  at  the  statute, 
the  provisional  Means  of  law,  not  at  Justice  the  ultimate  Purpose  of 
law.  To  the  "  Country,"  the  "  Body  of  the  People,"  or  to  the  jury  of 
inquest  and  of  trial,  he  assumes  not  to  suggest  the  law  and  its  appli- 
cation, but  absolutely  to  dictate  it  to  them.  He  claims  the  exclusive 
right  to  decide  on  the  Law  and  its  Application;  the  jury  is  only  to 
determine  the  Fact  —  whether  the  accused  did  the  deed  charged  or  not. 

If  the  judge  succeeds  in  this  battle,  then  tyranny  advances  step  by 
step;  the  jury  is  weakened;  its  original  function  is  curtailed;  certain 
classes  of  cases  are  taken  from  its  jurisdiction ;  it  becomes  only  the 
tool  of  the  government,  and  finally  is  thrown  aside.  Popular  law- 
making is  gone  ;  popular  law-applying  is  also  gone ;  local  self-govern- 
ment (;lisappears  and  one  homogeneous  centralized  tyranny  takes  the 
place  of  the  manifold  Freedom  of  the  people.  So  the  trial  by  jury 
faded  out  of  all  the  South-Teutonic  people,  and  even  from  many 
regions  of  the  German  and  Scandinavian  North.  But  the  Anglo- 
Saxon,  mixing  his  blood  with  Danes  and  Normans,  his  fierce  kinsfolk 
of  the  same  family,  has  kept  and  improved  this  ancient  institution. 
When  King  or  Parliament  made  wicked  laws,  or  appointed  corrupt 
and  cruel  men  for  judges,  the  People  have  held  this  old  ancestral 
shield  between  the  tyrant  and  his  victim.  Often  cloven  through  or 
thrust  aside,  the  Saxon  Briton  never  abandons  this.  The  Puritan 
swam  the  Atlantic  with  this  on  his  arm  —  and  now  all  the  Anglo- 


76  TRIAL    BY    JURY. 

Saxon  tribe  reverences    this    defence    as    the    Romans   their  twelve 
AOXCILIA,  the  mythic  shield  which  "  fell  from  Heaven."  ^ 


After  so  much  historic  matter,  Gentlemen,  it  is  now  easy  to  see 
what  is  — 

The  FuNCTiojf  of  the  Jury  at  this  time.  Here  I  make  three 
points. 

I.  They  are  to  decide  the  Question  of  Fact,  the  matter  charged, 
and  determine  whether  the  accused  did  the  deed  alleged  to  be  done. 
That  is  the  first  step  —  to  determine  the  Fact. 

II.  They  are  to  decide  the  Question  of  Law,  the  statute  or  custom 
supposed  to  apply  to  the  Deed  done,  and  determine  whether  there  is 
such  a  statute  or  custom,  and  whether  it  denounces  such  a  Deed  as  a 
Crime  assigning  thereto  a  punishment.  That  is  the  second  step  —  to 
determine  the  Law. 

HI.  They  are  to  decide  the  Question  op  the  Application  of  the 

■  Law  to  the  Fact,  and  to  determine  whether  that  special  statute  shall 

be  applied  to  the  particular  person  who  did  the  deed  charged  against 

him.     That  is  the  third  step  —  to  determine  the  Application  of  the 

Law. 

Gentlemen,  I  shall  speak  a  few  words  on  each  of  these  points, 
treating  the  matter  in  the  most  general  way.  By  and  by  I  shall  apply 
these  general  doctrines  to  this  special  case. 

I.  The  jury  is  to  decide  the  Question  of  Fact;  to  answer,  Did 
the  accused  do  the  deed  alleged,  at  the  time  and  place  alleged,  with 
the  alleged  purpose  and  producing  the  alleged  result?  The  answer 
will  be  controlled  by  the  Evidence  of  sworn  witnesses,  who  depose 
under  a  special  oath  to  "  tell  the  truth,  the  whole  truth,  and  nothing 
but  the  truth."  Their  Evidence  is  the  Testimony  as  to  the  Fact,  — 
the  sole  testimony;  the  jury  is  the  ultimate  arbiter  to  decide  on  the 
credibility  of  the  evidence,  part  by  part,  and  its  value  as  a  whole. 

Sometimes  it  is  an  easy  matter  to  answer  this  Question  of  Fact ; 
sometimes  exceedingly  diflicult.  If  there  be  doubts  they  must  weigh 
for  the  accused,  who  is  held  innocent  until  proven  guilty. 

With  us  the  theory  that  the  jury  is  the  exclusive  judge  of  the 
Question  of  Fact  is  admitted  on  all  sides.  But  in  England  it  has 
often  happened  that  the  judge  instructs  the  jury  to  '■'■find  I  he  facts"  so 
and  so;    that   is — he  undertakes  to  decide  the   Question  of   Fact. 


'  In  (Ilia  briof  skc.-tcli  I  do  not  roftT  to  tlic  aulliorities,  but  sec,  who  will,  tlic  classic 
passa^res  and  prool-texts  in  the  Avell-knovvn  works  of  Grimm,  llogge,  Bioner,  Michel- 
sen,  M().ser,  I'liillijiH,  Kichhorn,  ^Maiircr,  aiul  others. 


PRESENT  FUNCTIONS  OF  JURORS.  77 

In  libel  cases  it  is  very  common  for  New  England  judges  to  under- 
take to  determine  what  constitutes  a  libel,  and  to  decide  on  the  inten- 
tions of  the  accused;  that  is  to  decide  the  most  important  part  of  the 
complex  and  manifold  Question  of  Fact.  For  it  is  as  much  a  ques- 
tion of  fact  to  determine  what  constitutes  a  libel,  as  what  constitutes 
theft,  the  animus  Ubcltandi  as  much  as  the  animus  furandi.  Some- 
times juries  have  been  found  so  lost  to  all  sense  of  manhood,  or  so 
ignorant  of  their  duties,  as  to  submit  to  this  judicial  insolence  and 
usurpation. 

If  the  Jury  decide  the  Question  of  Fact  in  favor  of  the  accused, 
their  inquiry  ceases  at  that  step,  they  return  their  verdict,  "NOT 
GUILTY ;  "  and  the  affair  is  ended.  But  if  they  find  he  did  the  deed  as 
charged,  then  comes  the  next  function  of  the  Jury. 

II.  The  Jury  are  to  decide  the  Question  of  Law.  Is  there  a  stat- 
ute or  custom  denouncing  a  penalty  on  that  special  deed?  is  the 
statute  constitutional?  To  determine  this  matter,  there  are  three 
sources  of  evidence  external  to  their  own  knowledge. 

1.  The  Testimony  of  the  Government's  Attornei/.  The  GJovernment 
itself  is  his  client,  and  he  gives  such  a  statement  of  the  law  as  suits 
the  special  purposes  of  the  rulers  and  his  own  private  and  particular 
interest,  selects  such  statutes,  customs,  and  decisions,  as  will  serve 
this  purpose,  and  declares.  Such  is  the  law.  Nay,  he  makes  infer- 
ences from  the  law,  and  thereby  infers  new  customs,  and  constructs  new 
statutes,  invents  new  crimes.  He  treats  the  law  as  freely  as  he  treats 
the  facts  —  making  the  most  that  is  possible  against  the  party  accused. 
You  have  seen  already  what  tricks  Government  attorneys  have  played, 
how  they  pervert  and  twist  the  law —  making  it  assume  shapes  never 
designed  by  its  original  makers.  He  gives  his  opinion  as  to  the  law, 
as  he  gave  an  opinion  as  to  the  fact.  This  is  not  necessarily  his  per- 
sonal and  actual,  but  only  his  official  and  assumed  opinion — what 
he  wishes  the  Jury  to  think  is  law  in  this  particular  case. 

2.  The  Testimonij  of  the  Defendants  Attorney.  The  accused  is  his 
client.  He  is  to  do  all  he  can  to  represent  the  law  as  favorable  as  pos- 
sible to  the  man  on  trial.  He  gives  an  opinion  of  the  law,  not  his 
personal  and  actual,  but  his  official  and  assumed  opinion  —  what  he 
wishes  the  Jury  to  think  is  law  in  this  particular  case. 

3.  The  Testimony  of  the  Jud^e  on  the  Bench.  But  in  the  English 
courts,  and  the  Federal  courts  of  the  United  States,  he  is  commonly 
no  more  than  a  government  attorney  in  disguise ;  I  speak  only  of  the 
general  rule,  not  the  exceptions  to  it.  He  has  received  his  office  as 
the  reward  for  party  services  —  was  made  a  judge  because  he  was 
one-sided  as  a  lawyer.  In  all  criminal  cases  he  is  expected  to  twist 
the  law  to  the  advantage  of  the  hand  that  feeds  him.  Especially  is 
this  so  in  all  Political  trials  —  that  is,  prosecutions  for  opposition  to 


78  TRIAL   BY   JURY. 

the  party  which  the  judge  represents.  The  judge  may  be  impartial, 
or  partial,  just  or  unjust,  ignorant  or  learned.  He  gives  an  opinion 
of  the  law, — not  his  personal  and  actual,  but  his  official  and  assumed 
opinion  —  what  he  wishes  the  jury  to  think  is  law  in  this  particular 
case.  For  the  court  also  is  a  stage,  and  the  judges,  as  well  as  the 
attorneys,  may  be  players, 

"  And  one  man  in  liis  time  play  many  parts." 

Of  these  three  classes  of  witnesses,  no  one  gives  evidence  under  spe- 
cial oath  to  tell  the  law,  the  whole  law,  and  nothing  but  the  law  —  or 
if  it  be  so  understood,  then  all  these  men  are  sometimes  most  grossly 
and  notoriously  perjured ;  but  each  allows  himself  large  latitude  in 
declaring  the  law.  The  examples  I  have  already  cited,  show  that  the 
judge  often  takes  quite  as  wide  a  range  as  the  attorney-general,  or  the 
prisoner's  counsel. 

As  the  jury  hears  the  manifold  evidence  as  to  the  facts,  and  then 
makes  up  its  mind  thereon  and  decides  the  Question  of  Fact,  often 
rejecting  the  opinion  of  various  witnesses,  as  ignorant,  partial,  preju- 
diced, or  plainly  false  and  forsworn ;  so  will  the  jury  hear  the  mani- 
fold and  often  discrepant  evidence  as  to  the  law,  and  then  make  up 
their  mind  thereon  and  decide  the  Question  of  Law,  often  rejecting 
the  opinion  of  various  witnesses  thereupon  as  ignorant,  partial,  preju- 
diced, or  plainly  false  and  forsworn. 

In  regard  to  the  Fact,  the  jury  is  limited  to  the  evidence  adduced 
in  court.  What  any  special  juror  knows  from  any  other  source  is  not 
relevant  there  to  procure  conviction.  But  in  regard  to  the  Law 
there  is  no  such  restriction ;  for  if  the  jury  know  the  law  better  than 
these  three  classes  of  witnesses  for  it  in  court,  then  the  jury  are  to 
follow  their  better  knowledge.  At  any  rate,  the  jury  are  to  make  up 
their  minds  on  this  question  of  Law,  and  for  themselves  determine 
what  the  special  Law  is. 

Every  man  is  to  be  held  innocent  until  proved  guilty  —  until  the 
special  Deed  charged  is  proved  against  him,  and  until  that  special 
deed  is  proved  a  Crime.  The  jury  is  not  to  take  the  government 
attorney's  opinion  of  the  Fact,  nor  the  prisoner's  counsel's  opinion  of 
the  Fact,  nor  yet  the  judge's  opinion  thereon ;  but  to  form  their  own 
opinion,  from  the  evidence  offered  to  make  uj)  their  own  judgment  as 
to  the  l*'ii(;t.  So  likewise  they  arc  not  to  take  the  government  attor- 
ney's opinion  of  the  Law,  or  the  prisoner's  counsel's  opinion  of  the 
Law,  nor  yet  the  judge's  opinion  thereon;  but  from  all  the  evidence 
offered,  not  otherwise  knowji  to  them,  to  make  up  their  own  judgment 
as  to  thf  Jjaw.  Aflcr  they  have  done  so  —  if  they  decide  the  Law  in 
favor  of  the  uccn.-cd,  the  process  stops  there.     The  man  goes  free;  for 


PRESENT  FUNCTIONS  OF  JURORS.  79 

it  does  not  appear  that  his  deed  is  unlawful.  But  if  the  jury  find  the 
Law  against  the  deed,  they  then  proceed  to  their  third  function. 

III.  The  jury  is  to  decide  the  Question  of  the  Application 
OF  the  Law  to  the  Fact.  Here  is  the  question :  "  Ought  the  men 
who  have  done  this  deed  against  the  forjn  of  Law  to  be  punished 
thereby?"  The  government  attorney  and  the  judge  are  of  the  opin- 
ion that  the  law  should  be  thus  applied  to  this  case,  but  they  cannot 
lay  their  finger  on  him  until  the  jury,  specially  sworn  "  well  and  truly 
to  try  and  true  deliverance  make,"  have  unanimously  come  to  that 
opinion,  and  say,  "  Take  him  and  apply  the  law  to  him." 

The  Deed  may  be  clear  and  the  Statute  clear,  while  the  Application 
thereof  to  the  man  who  did  the  deed  does  not  follow,  and  ought  not 
to  follow.     P'or 

1.  It  is  not  designed  that  the  full  rigor  of  every  statute  shall  be 
applied  to  each  deed  done  against  the  letter  thereof.  The  statute  is 
a  great  sleeping  Lion,  not  to  be  roused  up  when  everybody  passes  that 
way.  This  you  see  from  daily  practice  of  the  courts.  It  remains  in 
the  Discretion  of  the  Attorney  to  determine  what  offences  he  will 
present  to  the  Grand-Jury,  —  he  passes  by  many,  and  selects  such  as 
he  thinks  ought  to  be  presented.  It  remains  in  the  Discretion  of  the 
Grand-Jury  to  determine  whom  they  will  indict,  for  sometimes  when 
the  Fact  and  Law  are  clear  enough  to  them,  they  yet  find  "no  bill  " 
or  ignore  the  matter.  And  after  the  man  is  indicted,  it  still  remains 
in  the  Discretion  of  the  Attorney  to  determine  whether  he  will  prose- 
cute the  accused,  or  pass  him  by.  Indeed  I  am  told  that  the  very 
Grand-Jury  who  found  the  bills  which  have  brought  you  and  me  face 
to  face,  hesitated  to  indict  a  certain  person  on  account  of  some  cir- 
cumstances which  rendered  his  unlawful  act  less  deserving  of  the 
legal  punishment:  the  Attorney  told  them  he  thought  they  had  better 
find  a  bill,  and  he  w^ould  enter  a  nolle  prosequi  in  court,  —  plainly 
admitting  that  while  the  Law  and  the  Fact  were  both  clear,  that  the 
Grand-Jury  were  to  determine  in  their  Discretion  whether  they  would 
apply  the  law  to  that  man,  whether  they  would  indict  or  not ;  and  the 
Attorney  whether  he  would  prosecute  or  forbear.  It  remains  equally 
in  the  Discretion  of  the  Trial  Jury  to  determine  whether  the  man  who 
did  the  unlawful  deed  shall  be  punished  —  whether  the  spirit  of  that 
statute  and  the  Purpose  of  Law  requires  the  punishment  which  it 
allows. 

2.  Besides,  in  deciding  this  question  —  the  jurors  are  not  only  to 
consider  the  one  particular  statute  brought  against  the  prisoner,  but 
the  whole  Complex  of  Customs,  Statutes,  and  Decisions,  making  up 
the  Body  of  Law,  and  see  if  that  requires  the  application  of  this  spe- 
cial statute  to  this  particular  deed.  Here  are  two  things  to  be  con- 
sidered. 


80  *  TRIAL   BY  JURY. 

(1.)  The  general  Purpose  of  the  whole  Body  of  Laws,  the  Object 
aimed  at ;  and 

(2.)  The  Means  for  attaining  the  end.  Now  the  Purpose  of  Law 
being  the  main  thing,  and  the  statute  only  subsidiary  to  that  purpose, 
the  question  comes  —  "  Shall  we  best  achieve  that  Purpose  by  thus 
applying  the  statute,  or  by  not  applying  it  ?  "  This  rests  with  the  Jury 
in  their  Discretion  to  determine. 

3.  Still  more,  the  Jury  have  consciences  of  their  own,  which  they 
must  be  faithful  to,  which  no  official  position  can  ever  morally  oblige 
them  to  violate.  So  they  are  to  inquire,  "  Is  it  right  in  the  sight  of 
God,  in  the  light  of  our  consciences,  to  apply  this  special  statute  to 
this  particular  case  and  thus  punish  this  man  for  that  unlawful  deed  ?  " 
Then  they  are  to  ask,  also,  "  Was  the  deed  naturally  ivrong ;  done 
from  a  ^vrong  motive,  for  a  wrong  purpose  ?  "  If  not,  then  be  the 
statute  and  the  whole  complex  of  laws  what  they  may,  it  can  never 
be  right  for  a  jury  to  punish  a  man  for  doing  a  right  deed,  however 
unlawful  that  deed  may  be.  No  oath  can  ever  make  it  right  for  a 
man  to  do  what  is  wrong,  or  what  he  thinks  wrong  —  to  punish  a 
man  for  a  just  deed  I 

But  if  the  twelve  men  think  that  the  Law  ought  not  to  be  applied 
in  this  case — they  find  "not  guilty,"  and  he  goes  free;  if  otherwise, 
"guilty,"  and  he  is  delivered  over  to  the  judges  for  sentence  and  its 
consequences,  and  the  judge  passes  such  sentence  as  the  Law  and  his 
Discretion  point  out. 

The  judge  commonly,  and  especially  in  political  trials,  undertakes 
to  decide  the  two  last  Questions  himself,  determining  the  Law  and  the 
Application  thereof,  and  that  by  his  Discretion.  He  wishes  to  leave 
nothing  to  the  Discretion  of  the  jury,  who  thus  have  only  the  single 
function  of  deciding  the  Question  of  Fact,  which  is  not  a  Matter  of 
Discretion  —  that  is,  of  moral  judgment,  —  but  only  a  logical  deduc- 
tion from  evidence,  as  the  testimony  compels.  He  would  have  no 
moral  element  enter  into  their  verdict.  The  judge  asks  the  jury  to 
give  him  a  deed  of  the  ground  on  which  he  will  erect  such  a  building 
as  suits  his  purpose,  and  then  calls  the  Vv^hole  thing  the  work  of  the 
jury,  who  only  granted  the  land! 

But  this  assumption  of  the  judges  ultimately  and  exclusively  to 
decide  the  question  of  Law  and  its  Application,  is  a  tyrannous  usur- 
pation. 

(1.)  It  is  contrary  to  the  fundamental  Idea  of  the  Institution  of 
Trial  by  jury. 

{:l.)  It  leads  to  monstrous  tyranny  by  putting  the  Property,  Liberty, 
and  Life  of  every  man  at  the  mercy  of  the  government  officers,  who 
determine  the  Law  and  its  Application,  leaving  for  the  jury  only  the 


PRESENT  FUNCTIONS  OF  JURORS.  81 

bare  question  of  Fact,  which  the  judge  can  so  manage  in  many  cases 
as  to  ruin  most  virtuous  and  deserving  men. 

(3.)  Not  only  in  ancient  times  did  the  jury  decide  the  three  ques- 
tions of  Fact,  of  Law,  and  of  its  special  Application,  but  in  cases  of 
great  magnitude  they  continue  to  do  so  now,  in  both  America  and 
England,  and  sometimes  in  direct  contradiction  to  the  conniiands  of 
tlie  judges. 

Gentlemen  of  the  Jury,  if  you  perform  this  tlircefold  function,  then 
you  see  the  exceeding  value  of  this  mode  of  trial, 

1.  For  the  punishment  of  wrong  deeds  done  against  the  law,  done 
by  the  unorganized  selfishness  of  thieves,  housebreakers,  murderers, 
and  other  workers  of  unrighteousness ; 

2.  And  also  for  the  prevention  of  wrong  deeds  attempted  in  the 
name  of  law,  by  the  organized  selfishness  of  the  makers  and  officers 
thereof. 

For  in  each  special  case  brought  to  trial,  the  jury  are  judges  of  the 
Law  and  of  its  Application.  They  cannot  make  a  law^ — statute  or 
custom — nor  repeal  one;  but  in  each  particular  case  they  must 
demand  or  forbid  its  execution.  These  Tribunes  of  the  Saxon  Peo- 
ple-have no  general  veto  on  law-making,  and  can  efface  no  letter  from 
the  statute-book,  but  have  a  special  and  imperative  veto  on  each  case 
for  the  Application  of  the  law. 

Justice,  the  point  common  to  the  interests  of  all  men,  yes,  the  point 
common  to  God  and  our  Conscience,  is  the  Aim  and  Purpose  of  Law 
in  general ;  if  it  be  not  that  the  law  is  so  far  unnatural,  immoral, 
and  of  no  obligation  on  the  conscience  of  any  man.  The  special 
Statute,  Custom,  or  Decision,  is  a  provisional  Means  to  that  end ;  if 
just,  a  moral  means  and  adequate  in  kind;  if  unjust,  an  immoral 
means,  inadequate  in  kind,  and  fit  only  to  defeat  the  attainment  of 
that  Justice  which  is  the  Purpose  of  all  Law.  Accordingly,  if  by  an 
accident,  a  special  statute  is  so  made  that  its  application  in  a  particu- 
lar case  would  do  injustice  and  so  defeat  the  Design  and  Purpose  of 
Law  itself,  then  the  function  of  the  jury  under  their  oath  requires 
them  to  preserve  the  End  of  law  by  refusing  to  apply  the  provisional 
statute  to  an  unjust  use.  And  if  by  design  a  statute  is  made  in 
order  to  do  injustice  to  any  man  —  as  it  has  very  often  happened  in 
England  as  well  as  America,  —  then  the  jury  will  accomplish  their 
function  by  refusing  to  apply  that  statute  to  any  particular  case.  So 
will  they  fulfil  their  official  oath,  and  conserve  the  great  ultimate 
Purpose  of  Law  itself. 

Gentlemen,  you  will  ask  me  where  shall  the  jury  find  the  Rule  of 
Right,  and  how  know  what  is  just,  what  not?  In  your  own  Con- 
science, Gentlemen  ;  not  in  the  conscience  of  the  Attorney  for  the 


82  '  TRIAL   BY   JURY. 

Plaintiff- Government,  or  the  accused  Defendant;  not  in  the  con- 
science of  the  community ;  still  less  in  the  technical  "  opinion  "  of 
the  lawyers,  or  the  ambition,  the  venality,  the  personal  or  purchased 
rage  of  the  court.  Of  course  you  will  get  such  help  as  you  can  find 
from  judges,  attorneys,  and  the  public  itself,  but  then  decide  as  you 
must  decide  —  each  man  in  the  light  of  his  own  conscience,  under  the 
terrible  and  beautiful  eyes  of  God.  How  does  the  juror  judge  of  the 
Credibility  of  Evidence  ?  By  the  "  opinion  "  of  the  lawyers  on  either 
side?  by  the  judge's  "opinion,"  or  that  of  the  community?  No  one 
would  dare  determine  thus.  He  decides  personally  by  his  own  com- 
mon sense,  not  vicariously  by  another's  opinion.  And  as  you  decide 
the  Matter  of  Fact  by  your  own  Discretion  of  Intellect,  so  will  you 
decide  the  IMatter  of  Right  by  your  own  Discretion  of  Conscience. 

Gentlemen,  when  the  jury  do  their  official  duty  it  becomes  impossi- 
ble to  execute  a  statute,  or  custom,  or  to  enforce  a  decision  which 
the  jury  —  "the  country"  —  think  unjust  and  not  fit  to  be  applied. 

But  if  the  judge  usurps  these  two  functions  of  the  jury,  and  him- 
self decides  the  Question  of  Law  and  its  Application,  you  see  what 
follows  —  consequences  the  most  ghastly,  injustice  in  the  name  of 
Law,  and  with  the  means  of  Law!  Yes,  tyranny  spins  and  weaves 
with  the  machinery  of  Freedom,  and  a  Nessus-shirt  of  bondage*  is 
fixed  on  the  tortured  body  of  the  People.  The  power  of  the  judge 
will  be  especially  dangerous  in  times  of  political  excitement,  and 
in  political  trials. 

Gentlemen,  this  matter  is  so  important,  and  the  danger  now  so  im- 
minent that  you  will  pardon  me  a  few  words  while  I  set  forth  the 
mode  by  which  this  wickedness  goes  to  work,  and  what  results  it 
brings  to  pass.     Follow  me  in  some  details. 

I.  As  to  the  judges  dealing  with  the  Grand-Jury. 

Here  let  me  take  the  examples  from  the  circuit  court  of  the  United 
States  in  a  supposed  case  where  a  man  is  to  be  tried  for  violating  the 
fugitive  slave  bill.  You  will  see  this  is  a  case  which  may  actually 
happen. 

1.  The  judge  challenges  the  whole  body  summoned  as  grand-jurors 
and  catechizes  them  after  this  fashion. 

(L)  "  Have  you  formed  an  opinion  that  the  law  of  the  United 
States,  known  as  the  Fugitive  Slave  Law  of  1850,  is  Unconslitu- 
iioiial,  so  1h;it  you  cannot  indict  a  person  under  it  for  that  reason, 
although  the  court  holds  the  statute  to  be  Constitutional?" 

This  is  riddling  No.  1.  Such  as  think  the  fugitive  slave  bill  uncon- 
sUtiilioiKil  ;irc  a1  once  set  aside.  The  judge  proceeds  to  ask  such  as 
have  MO  doubt  that  if  is  constitutional, 

(2.)  "  Do    you    hold    any  opinions    on    the    subject  of  Slavery   in 


CASE  OF  JUDICIAL  USURPATION.  83 

i^encral,  or  of  the  Fugitive  Slave  Law  in  special,  which  would  induce 
you  to  refuse  to  indict  a  man^presented  to  you  for  helping  Ins  brother 
to  freedom  ?  " 

This  is  riddling  No.  2;  other  "good  men  and  true"  arc  rejected, 
but  some  are  found  "  faithful"  to  the  purposes  of  the  court ;  and  the 
judge  puts  his  next  question, 

(o.)  "  AVill  you  accept  for  Law  whatever  the  court  declares  such  ?  " 

This  is  riddling  No.  3.  Still  the  judge  finds  threc-and-twcnty  men 
small  enough  to  pass  through  all  these  sieves.  They  are  to  be  "  the 
jury."  All  the  men  who  deny  the  constitutionality  of  the  wicked 
statute  ;  all  who  have  such  reverence  for  the  unalienable  Hights  of 
man  and  for  the  Natural  Law  of  God  that  they  would  riot  jn-event 
a  Christian  from  aiding  his  brother  to  escape  from  bondage ;  all  who 
have  such  respect  for  their  own  manhood  that  they  will  not  swear  to 
take  a  judge's  word  for  law  before  they  hear  it  —  are  shut  out  from 
the  "grand  inquest;"  they  are  no  part  of  the  "Country,"  or  the 
"  Body  of  the  county,"  are  not  "  good  men  and  true." 

Gentlemen  of  the  Jury,  consider  the  absurdity  of  swearing  to  take 
for  law  what  another  man  will  declare  to  be  law,  and  before  you  hear 
iti  Suppose  the  judge  should  be  drunk  and  declare  the  fugitive  slave 
bill  in  perfect  harmony  with  the  Sermon  on  the  Mount,  those  noble 
words  "  Whatsoever  ye  would  that  men  should  do  unto  you,  do  ye 
even  so  unto  them,"  —  are  jurors  to  believe  him  ?  What  if  the  judge 
should  be  sober,  and  declare  it  a  "  misdemeanor  "  to  call  the  fugitive 
slave  bill  a  wicked  and  hateful  statute,  and  all  who  thus  offended 
should  be  put  in  jail  for  twelve  months!  Are  honest  men  to  take 
such  talk  for  American  law  ? 

The  jurors  then  take  this  oath  which  the  clerk  reads  them:  — 

"  You,  as  a  member  of  this  Inquest  for  the  District  of  ]\Iassachu- 
setts,  shall  diligently  inquire  and  true  presentment  make  of  all  such 
matters  and  things  as  shall  be  given  you  in  charge ;  the  counsel  of  the 
United  States,  your  fellows',  and  your  own  you  shall  keep  seci^et ;  you 
shall  present  no  man  for  envy,  hatred,  or  revenge ;  neither  shall  you 
leave  any  man  unpresented  —  for  love,  fear,  favor,  affection,  or  hope  of 
reward ;  but  you  shall  present  things  truly  as  they  come  to  your 
knowledge,  according  to  the  best  of  your  understanding.  So  help 
you  God !  "  1 

Then  the  judge  appoints  the  most  pliant  member  of  the  jury  as 
"  foreman  "  —  selecting,  if  possible  to  find  him,  some  postmaster  or 
other  official  of  the  government,  or  some  man  marked  for  his  injustice 
or  venality,  who  may  have  the  desirable  influence  with  his  fellows. 

2.  The  next  thing  is  to  moisten  this  material  thus  trebly  sifted,  and 

1  See  other  forms  of  Oath  in  8  St.  Tr.  759,  772. 


84  TKIAL   BY   JURY. 

mould  it  into  such  vessels  of  tyranny  as  he  can  fill  with  his  private  or 
judicial  wrath  and  then  empty  on  the  heads  of  his  personal  foes  or 
such  as  thwart  his  ambitious  despotism  or  the  purposes  of  his  govern- 
ment.    So  he  delivers  his"  Charge  to  the  Grand-Jury. 

By  way  of  introduction,  he  tells  them  — 

(1.)  That  they  are  not  the  Makers  of  Law.  Legislation  is  the 
function  of  Congress  and  the  President;  even  the  Court,  the  "Su- 
preme Court  of  the  United  States"  itself  cannot  make  a  law,  or 
repeal  one! 

(2.)  That  they  are  not  the  Declarers,  or  Judges  of  Law.  To  know 
and  set  forth  the  Law  is  the  function  of  the  Court.  It  is  true  every 
man  in  his  personal  capacity,  as  private  citizen,  is  supposed  to  know 
the  law,  and  if  he  violates  it,  of  his  own  presumption,  or  by  the  per- 
suasion of  some  others  who  falsely  tell  him  about  the  law,  he  must 
be  punished ;  for  "  ignorantia  nemini  excusat,^'  ignorance  excuseth 
none;  the  private  advice  of  the  full  bench  of  judges  would  be  held 
no  excuse.  Bat  in  their  official  capacity  of  jurors  they  are  supposed 
to  know  nothing  of  the  Law  whatsoever. 

It  seems  taken  for  granted  that  though  one  of  the  Jurors  may  be  an 
old  judge  of  the  Supreme  Court  of  the  United  States,  and  have  sat  on 
the  bench  for  twenty  years ;  nay,  though  he  may  be  also  an  old  legis- 
lator of  twenty  years'  standing,  and  as  legislator  have  made  the  very 
statute  in  question,  and  also  as  judge  subsequently  have  explained 
and  declared  it,  yet  the  moment  he  takes  the  oath  as  Grand-Juror, 
all  this  knowledge  is  "  gone  from  him  "  as  completely  as  Nebuchad- 
nezzar's dream.  The  court  is  the  assembly  of  magicians,  astrolo- 
gers, sorcerers,  and  Chaldeans  to  restore  it.  Congress  might  pass  a 
law  compelling  ex-judges,  ex-senators,  and  ex-representatives  —  who 
are  so  numerous  now-a-days,  and  continually  increasing  and  likely  to 
multiply  yet  more,  —  to  serve  as  grand-jurors;  soon  as  they  take  their 
oath,  they  are  in  law  held  and  accounted  to  be  utterly  ignorant  of 
law,  and  bound  to  accept  as  law  whatsoever  the  court  declares  such. 
The  acting  judge  may  be  young,  blind,  ignorant,  ambitious,  drunli 
with  brandy  or  rage,  he  may  have  a  personal  interest  in  promoting 
the  law,  and  may  notoriously  twist  it  so  as  to  gratify  his  peculiar  or 
familistic  spleen,  still  the  jury  is  to  accept  the  court's  opinion  for  the 
nation's  law.  Any  political  ignoramus,  if  hoisted  to  the  "bench," 
has  judicial  authority  to  declare  the  law,  —  it  is  absolute.  If  he 
errs,  "  he  is  responsible  to  the  proper  authorities  —  he  may  be  removed 
by  impeachment;"  but  the  jury  must  not  question  the  infallibility  of 
his  opinion.  lA)r  though  the  grand-jury  is  "  the  country,"  the  judge  is 
not  only  all  that,  and  more  so;  but  is  "the  rest  of  mankind"  besides. 

ThiMi  the  judge  goes  further —  talks  solcmni//,  yet  familiar ;  to  whee- 
dle jurors  the  better,  he  mixes  himself  with  them,  his  "  We"  embracing 


CASE    OF  JUDICIAL   USUKPATIOIS''.  85 

both  jndgc  and  jury.     I  shall  now  quote  actual  language  used  in  this 
very  court,  by  the  late  Hon.  Judge  Woodbury :  — 

"  One  of  the  peculiar  dangers  ...  to  wliicli  jurors,  as  well  as  judges,  are  exposed, 
is  the  uiijjopulartti/,  or  ohnoxioitsness  .  .  .  of  any  particular  law,  -which  has  been 
violated,  leading  us  ...  to  be  timid  or  unfaithful  in  enforcing  it  .  .  .  the  subject- 
matter  being  a  delicate  or  ofrensive  one."  "  AVhilc  we  .  .  .  arc  holding  the  scales  as 
well  as  the  sword  of  Justice,  in  Jnimhle  biutation  of  the  Divine  Jiulge  on  high,"  it  is  our 
duty  to  '■'■let  law,  an  law,  [that  is,  whether  it  is  just  or  unjust]  reign  supreme,  reign 
equally  over  all,  and  as  to  all  things,  no  less  than  persons ;  and  till  it  is  changed  by  the 
proper  authorities,  not  to  interpose  our  indioiduul  caprices  or  fancies  or  speculations 
[that  is,  our  convictions  of  justice']  to  defeat  its  due  course  and  triumph."  We  must  not 
"  disregard  laics,  when  disliked,  because  we  can,  under  the  universal  suffrage  enjoyed 
here,  otherwise  help  legally  to  change  or  annul  them  by  our  votes."  "As  jurors  ?/o?/ 
have  sworn  to  obey  them  till  so  changed,  and  ouglit  to  stand  by  them  faithfully,  to  the 
last  moment  of  their  existence."  "  We  are  safest  in  our  capacity  of  public  oflicers  .  .  . 
to  execute  the  laws  as  they  are  [right  or  wrong],  while  others  who  n^ay  make  or  retain 
bad  laws  in  the  statute-book,  are  answerable  for  their  own  tcrong.  If  they  preserve 
laws  on  the  statute-book,  which  are  darkness  rather  than  light  aud  life  to  the  people, 
theirs  is  the  fault,  [that  is,  if  a  blacksmith  make  a  dagger,  and  tell  us  to  stab  an  inno- 
cent man  with  it,  we  naust  obey,  and  the  blame  will  rest  on  the  blacksmith  who  made 
the  dagger,  not  on  the  assassin  who  murdered  with  it !]  In  some  cases,  also,  when  we 
think  the  existing  laics  and  punishments  are  tcrong,  and  hence  venture  to  encoui;age 
others  iu  disobedience  by  neglecting  to  indict  and  punish  offenders,  it  should  make  us 
pause  and  halt  when  it  is  remembered,  it  may  turn  out  that  tee  ourselves  7nay  not  be 
exactly  Sulons  or  Solomons  in  these  respects,  nor  quite  so  much  wiser  than  the  laws 
themselves,  as  sometimes  we  are  hastily  induced  to  suppose."  "  Miserable  must  be  the 
fate  of  that  community  where  the  ministers  of  the  law  are  themselves  disposed  to  disre- 
gard it ;  "  "  government  will  become  a  curse  ;  "  "  and  this  whether  such  a  betrayal  of 
puhtic  trust  springs  from  the  delusions  of  false  philanthropy  or  fanatical  prejudices,  no 
less  than  ichen  it  comes  from  unbridled  licentiousness." 

"  We  must  not  lay  the  flattering  unction  to  our  souls,  that  because  by  some  possibility 
there  may  not  be  guilt,  we  can  rightfully  discharge  as  if  there  were  no  guilt."  "It  is 
sometimes  urged  against  agreeing  to  indict,  convict,  or  punish,  that  we  have  conscien- 
tious scruples  on  the  subject;"  "  if  sincere  tenderness  of  conscience  presses  on  the  heart 
and  mind  against  executing  some  of  the  laws,  it  should  lead  us  to  decline  office  or  resign  ; 
not  to  neglect  or  disobey,  while  in  office,  what  we  have  promised  and  sworn  to  per- 
form ;  "  [as  if  the  juror  swore  to  do  injustice  !]  "  or  if  a  majority  prove  unaccommodaLing 
or  inflexible  against  us,  then  it  behooves  these  differing  from  them  .  .  .  to  withdraic 
entirely  from  such  a  government,  and  emigrate.'"  [So  the  juror  must  not  try  to  do  jus- 
tice at  home,  but  seek  it  in  exile.]  "  But  in  all  such,  cases  we  must  take  special  care 
not  to  indulge  ourselves  in  considering  an  act  as  a  sin  which  is  only  disagreeable,  or  the 
result  of  only  some  prejudice  or  caprice."  "  The  presumptio7is  are  that  all  laws,  si-.ne- 
tioned  by  such  intelligent,  numerous,  and  respectable  members  of  society  as  compose 
our  legislative  bodies,  are  constitutional,  and  until  pronounced  otherwise  by  the  proper 
tribunal,  tlie  judiciary,  it  is  perilous  for  j urors  to  disobey  them,"  [that  is,  to  refuse  to 
execute  them]  "  and  it  is  trifling  M'ith  their  solemn  obligations  to  disregard  them  in  any 
toay  and  on  any  occasion,  from  constitutional  doubts,  unless  of  the  clearest  and  strongest 
character."  ^ 

1  The  above  extracts  are  from  Judge  Woodbury'^  charge  to  the  Grand-Jury,  in  Ch-cuit  Court 
of  United  States,  at  Boston,  taken  from  the  Eveniny  Traveller,  copying  the  reprint  of  Boston 
Daily  Advertiser,  of  October  25,  1850. 


86  TRIAL   BY   JURY. 

He  then  tells  them  that  no  feeling'  of  Hamanili)  must  be  allowed  to 
prevent  them  from  executing  any  law  which  the  court  declares  to 
them,  "  whether  the  statute  is  a  harsh  one,  is  not  for  us  to  deter- 
mine." 1  A  cruel  laiv  is  to  be  enforced  as  vigorously  as  a  humane  one ; 
an  unjust  law  as  a  just  one;  a  statute  which  aims  to  defeat  the  pur- 
pose of  Law  itself,  just  as  readily  as  one  which  aims  to  secure  the 
dearest  rights  of  humanity.  If  the  statute  is  notoriously  wicked,  as 
in  the  case  supposed,  then  the  Judge  says:  "  It  is  to  be  observed  that 
this  statute  [the  fugitive  slave  bill]  subjects  no  person  to  arrest  who 
was  not  before  liable  to  be  seized  and  carried  out  of  the  State ; " 
"  Congress  has  enacted  this  law.  It  is  imperative,  and  it  will  be 
enforced.  Let  no  man  mistake  the  mildness  and  forbearance  with 
which  the  criminal  code  is  habitually  administered,  [as  in  cases  of 
engaging  in  the  slave-trade]  for  weakness  or  timidity.  Resistance  [to 
the  fugitive  slave  bill]  must  make  it  sternly  injlexible.^^  "As  great 
efforts  have  been  made  to  convince  the  public  that  the  recent  law 
[the  fugitive  slave  bill]  cannot  be  enforced  with  a  good  conscience, 
but  may  be  conscientiously  resisted  ...  I  deem  it  proper  to  advert, 
briefly,  to  the  moral  aspects  of  the  subject."  "  The  States  without  the 
constitution  would  be  to  each  other  foreign  nations."  "  Those,  there- 
fore, who  have  the  strongest  convictions  of  the  immorality  of  the  insti- 
tution of  slavery,  are  not  thereby  authorized  to  conclude  that  the  pro- 
vision for  delivering  vp  fugitive  slaves  is  morally  wrong,  [that  is,  if  it 
be  wrong  to  hold  man  in  bondage,  it  is  also  not  wrong,]  or  that  our 
Fathers  .  .  .  did  not  act  wisely,  justly,  and  humanely  in  acceding  to 
the  compacts  of  the  Constitution."  "  Even  those  who  go  to  the 
extreme  of  condemning  the  Constitution  and  the  laws  made  under  it, 
as  unjust  and  immoral,  cannot  .  .  .  justify  resistance.  In  their  view, 
such  laws  are  inconsistent  with  the  justice  and  benevolence  and 
against  the  will  of  the  Supreme  Lawgiver,  and  they  emphatically 
ask,  ^  Which  shall  ice  obey,  the  laiu  of  man,  or  the  Will  of  God?^  I 
answer,  'Obey  both  I'  The  incompatibility  which  the  question  as- 
sumes [between  Right  and  Wrong,  or  Good  and  Evil,  or  God  and  the 
Devil^  does  not  exist !  Unjust  and  oppressive  laws  may  indeed,  be 
passed  by  human  governments.  But  if  Infinite  and  Inscrutable  Wis- 
dom permits  poUlicul  society,  havmg  the  power  of  human  legislation, 
to  establish  such  laws,  may  not  the  same  Infinite  and  Inscrutable  Wisdom 
permit  and  require  an  individual,  who  has  no  such  power,  to  obey  them  ?  " 
[So  "if   Infinite    and   Inscrutable  Wisdom  permits"  a  Blacksmith 


'  Words  of  Chief  Justice  Parker,  in  CommonwenltU  vs.  Griffith,  2  riokcring's  Re- 
ports, 19,  cited  witli  approbation  by  Cbief  Justice  Shaw,  in  the  Sims  case,  7  Cushing's 
Keporls,  70j,and  also  cited  Ironi  him  and  acted  on  by  fugitive  slave  bill  Commissioner 
Loring,  in  the  Burns  case. 


CASE    OF   JUDICIAL   USURPATION.  87 

"having  the  power"  to  forge  steel  and  temper  it,  to  nnake  daggers, 
"  may  not  the  same  Infinite  and  Inscrutable  Wisdom  permit  and 
require  the  individual "  carpenter  or  tailor,  who  has  no  such  power, 
to  use  the  dagger  for  the  purpose  intended  I]  "  Conscience,  indeed, 
is  to  be  reverenced,  and  obeyed ;  but  still  we  must  remember  that  it  is 
fallible,  especially  when  the  rights  of  others  are  concerned,  [that  is, 
the  right  to  kidnap  men]  and  may  lead  us  lo  do  great  injustice,  [by 
refusing  to  punish  a  man  who  helps  his  brother  enjoy  his  self-evident, 
natural,  and  unalienable  right  to  life,  liberty,  and  the  pursuit  of  happi- 
ness]. The  annals  of  the  world  abound  with  enormities  committed 
by  a  narrow  and  darkened  conscience."  A  statute  "  is  the  moral 
judgment,  the  embodied  conscience  of  the  political  community,  [the 
fugitive  slave  bill  the  'embodied  conscience'  of  New  England].  To 
this  not  only  is  each  individual  bound  to  submit,  [right  or  wrong,] 
but  it  is  a  new  and  controlling  element  informing  his  oivn  moral  judg- 
ment ;^^  [that  is,  he  must  think  the  statute  is  just].  "  Obedience  is  a 
moral  duty,  [no  matter  how  immoral  the  law  may  be].  This  is  as 
certain  as  that  the  Creator  made  man  a  social  being  ;^^  '•'■io  obey  the 
laics  of  the  land  [no  matter  what  laws,  or  how  wicked  soever]  is,  then, 
to  obey  the  Will  of  God  I " 

Gentlemen  of  the  Jury,  you  think  I  have  imagined  and  made  up 
this  language  out  of  my  own  fancy.  No,  Gentlemen,  I  could  not  do 
it.  I  have  not  the  genius  for  such  sophistry.  I  only  quote  the  words 
of  the  Hon.  Judge  Peleg  Sprague  delivered  to  the  grand-jury  of  this 
Circuit  Court  of  United  States  at  Boston,  March  18,  1851.1  Gentle- 
men, I  showed  you  what  Thurlow  could  say  at  Home  Tooke's  trial 
on  the  4th  of  July,  1777.  Nay,  I  quoted  the  words  of  Powis  and 
Allybone,  and  Scroggs  and  Jeffreys.^  But,  Gentlemen,  the  judge  of 
New  England  transcends  the  judges  of  Old  England. 

3.  Having  made  this  general  preparation  for  his  work  and  shaped 
his  vessel  to  the  proper  form,  he  proceeds  to  fill  it  with  the  requisite 
matter. 

(1.)  He  practically  makes  the  Law  just  as  he  likes,  so  as  to  suit  the 
general  pia-pose  of  the  government,  or  the  special  purpose  of  his 
private  vengeance  or  ambition.     Thus, 

a.  Out  of  the  whole  comj^lex  of  law  —  statutes,  decisions,  customs, 
charges,  opinions  of  judicial  men,  since  the  Norman  conquest  or  be- 
fore it,  —  he  selects  that  special  weapon  which  will  serve  his  present 
turn.  And  tells  the  jury,  "  that  is  the  law  which  you  are  sworn  to 
enforce.     I  have  not  made  it  —  it  is  the  Lex  terrce,  the  Law  of  the 

^  See  Boston  Daibj  Advertiser  of  March  19,  1851. 
-  See  above,  p.  33,  37,  et  al. 


88  TRIAL   BY   JURY. 

Land."     Or  if  in  such  an  arsenal,  so  copious,  he  finds  no  weapon 
ready  made,  then 

b.  Out  of  that  pile  of  ancient  instruments  he  selects  something 
which  he  forges  over  anew,  and  thus  constructs  a  new  form  of  law 
when  he  could  not  find  one  ready  for  his  hand.  If  a  straight  statute 
will  not  catch  the  intended  victims  he  perverts  it  to  a  hook  and  there- 
with lays  hold.     He  thus  settles  the  law. 

(2.)  He  next  practically  determines  what  Deed  constitutes  the 
"offence"  forbidden  by  the  law  he  has  just  made.  So  he  selects 
some  act  which  it  is  notorious  was  done  by  the  man  he  strikes  at,  and 
declares  it  is  the  "  offence,"  the  "  crime."  Here  too  he  is  aided  by 
ancient  precedent ;  whereof  if  our  brief  Republican  annals  do  not 
furnish  examples,  he  hies  to  the  exhaustless  treasury  of  Despotism  in 
the  English  common  law.  He  opens  the  "  Reports,"  the  "  Statutes 
of  the  Realm,"  or  goes  back  to  the  "  Year-books."  Antiquity  is  rich  in 
examples  of  tyranny.  "  He  readily  finds  a  stick  who  would  beat  a 
dog."  "  Such  are  the  opinions,"  quoth  he,  "  of  the  venerable  Chief 
Justice  Jones,"  or  "  my  Lord  Chancellor  Finch,"  or  "  Baron  Twys- 
den,"  or  "  my  Lord  Chief  Justice  Kelyng." 

Thus  the  Judge  constructs  the  Jury  —  out  of  such  men  as  he 
washes  for  his  purpose ;  constructs  the  Law,  constructs  the  Offence, 
the  Crime :  nay.  he  points  out  the  particular  Deed  so  plain  that  he 
constructs  the  Indictment.  All  that  is  left  for  the  "  Grand  Inquest " 
is  the  mechanical  work  of  listening  to  the  "  evidence "  and  signing 
the  Bill  —  "  Billa  Vera,""  a  true  bill.  That  they  may  accomplish  this 
work  he  delivers  them  over  to  the  District  Attorney ;  he  may  be  also 
an  agent  of  the  government,  appointed  for  his  party  services,  looking 
for  his  reward,  expecting  future  pay  for  present  work,  extra  pay  for 
uncommon  zeal  and  "  discretion."  Gentlemen  of  the  Jury,  this  7nai/ 
be  the  case  —  humanity  is  fallible,  and  it  sometimes  may  happen  even 
in  the  Circuit  Court  of  the  United  States  that  such  a  man  should 
hold  the  office  of  District  Attorney.  For  it  is  not  to  be  expected, 
nay,  it  is  what  we  should  not  even  ask  —  that  this  place  should 
always  be  filled  by  such  conspicuous  talent,  such  consummate  learn- 
ing, and  such  unblemished  integrity  as  that  of  the  present  attorney 
(lion.  Mr.  Hallett).  No,  Gentlemen  of  the  Jury,  as  I  look  round 
these  walls  I  am  proud  of  my  country  !  Such  a  District  Attorney,  so 
bearing  "his  great  commission  in  his  look;"  his  political  course  as 
free  from  turning  and  winding  as  the  river  Missouri;  high-minded, 
the  very  Ciesar's  wife  of  democratic  virtue,  —  spotless  and  unsus- 
pected ;  never  seeking  office,  yet  alike  faithful  to  his  principles  and  his 
party;  and  with  indignant  foot  spurning  the  Administration's  bootless 
bribi',  —  the  fact  outtravcls  fancy.     Nay,  Gentlemen,  it  is  something 


CASE    OF   JUDICIAL   USURPATION.  89 

to  be  an  American  —  I  feel  it  as  I  look  about  me.  For  the  honorable 
Attorney  is  perfectly  suited  to  this  Honorable  Court;  —  yea,  to  the 
Administration  which  gives  them  both  their  dignity  and  their  work 
and  its  pay.  Happy  country  with  such  an  Attorney,  fortunate  with 
such  a  Court,  but  thrice  and  four  times  fortunate  when  such  several 
stars  of  justice  unite  in  such  a  constellation  of  juridic  fire! 

But,  Gentlemen,  it  is  too  much  to  ask  of  human  nature  that  it 
shonld  be  always  so.  In  my  supposed  case,  the  judge  delivers  the 
persons  accused  to  the  officers,  restless,  bellowing,  and  expecting  some 
fodder  to  be  pitched  down  to  them  from  the  national  mow,  already 
licking  their  mouths  which  drool  with  hungry  anticipation.  They  will 
swear  as  the  court  desires.  Then  the  Attorney  talks  with  the  most 
pliant  jurors,  coaxes  them,  wheedles  them,  stimulates  them  to  do  what 
he  wants  done.  Some  he  threatens  with  the  "  displeasure  of  the  gov- 
ernment;" he  swears  at  some.  After  all,  if  the  jury  refuse  to  find  a 
bill,  —  a  case.  Gentlemen,  which  has  happened,  —  they  are  discharged  ; 
and  a  new  jury  is  summoned  ;  some  creature  of  the  government  is  piit 
on  it,  nay,  perhaps  some  kinsman  of  the  anxious  judge,  at  least  a 
Brother-in-Law,  and  at  last  twenty-three  men  are  found  of  whom 
twelve  consent  to  a  "  True  Bill.''  Then  great  is  the  joy  in  the  judge's 
heart,  —  it  is  corrupt  judges  I  am  speaking  of.  Gentlemen  of  the  Jury, 
not  of  upright  and  noble  men,  may  it  please  your  Honors!  There  is 
great  joy  in  the  judge's  heart,  and  great  rejoicing  amongst  his  kinsfolk 
and  intimate  friends  who  whinney  and  neigh  over  it  in  the  public 
journals,  and  leer  at  the  indicted  man  in  the  street,  lolling  out  their 
tongues  greedy  for  his  vengeance! 

H.  Now,  Gentlemen,  look  next  at  the  judge's  dealing  with  the 
Trial-Jury.     He  proceeds  as  before. 

1,  He  sifts  the  material  returned  to  him,  through  those  three 
sieves  of  questioning,  and  gets  a  Jnry  with  no  hard  individual  lumps 
of  solid  personal  independence.  They  take  the  oath  which  you  have 
just  taken,  Grentlemen :  "  You  shall  well  and  truly  try  the  issue 
between  the  United  States  and  the  Defendant  at  the  Bar,  according 
to  the  law,  and  the  evidence  given  you,  so  help  you  God !  " 

The  facts  are  then  presented,  and  the  case  argued  on  both  sides. 

2.  The  Judge  sums  up,  and  charges  the  Jury.  He  explains  their 
oath ;  to  try  the  issue  according-  to  the  laiv  does  not  mean  (a)  accord- 
ing to  the  whole  complex  which  is  called  "  Laiv,^^  or  "  The  Law,''^ 
but  according  only  to  that  particular  statute  which  forbids  the  deed 
charged,  —  for  otherwise  the  Jury  must  judge  of  the  Purpose  of  Law, 
which  is  Justice,  and  inquire  into  the  rightfulness  of  the  deed  and  of 
the  statute  which  forbids  it.  Nor  does  it  mean  (b)  by  the  Jurors' 
notion  of  that  statute,  but  only  by  the  Judge's  opinion  thereof.     He 


90  TRIAL   BY   JURY. 

tells  them  —  if  they  proceed  to  inquire  into  the  natural  Justice  of  the 
deed,  or  into  the  law  which  forbids  it,  then  they  transcend  their  ofTice, 
and  are  guilty  of  "  Perjury,"  and  reads  them  the  statute  for  the  pun- 
ishment of  that  offence,  and  refers  to  examples  —  from  the  times  of 
the  Stuarts,  though  he  does  not  mention  that  —  when  Jurors  were 
fined  and  otherwise  severely  dealt  with  for  daring  to  resist  a  judge. 

Then  out  of  the  facts  testified  to  by  the  government  witnesses,  he 
selects  some  one  which  is  best  supported,  of  which  there  is  no  doubt. 
He  then  declares  that  the  question  of  "  Guilty  or  not  guilty  "  turns 
on  that  point.  If  the  accused  did  that  deed  —  then  he  is  Guilty.  So 
the  moral  question,  "Has  the  man  done  a  wrong  thing?"  is  taken 
from  their  consideration;  the  intellectual  question,  "Has  he  done  a 
deed  which  amounts  to  the  crime  forbidden  ?  "  is  not  before  them ; 
only  the  mechanical  question,  "  Did  he  do  that  particular  act  ? " 
They  are  not  to  inquire  as  to  the  Justice  of  the  law,  its  Constitution- 
ality, or  its  Legality  ;  nor  the  Justice  or  the  Criminality  of  the  deed 

—  only  of  its  Actuality,  Did  he  do  this  deed  ?  Nay,  sometimes  the 
Judge  treats  them  as  cattle,  and  orders  them  to  find  the  facts  for  the 
government.     If  they  refuse,  he  threatens  them  with  punishment. 

Thus  he  constructs  the  Trial-Jury,  the  Law,  the  Evidence,  the 
Crime,  and  the  Fact. 

Now,  Gentlemen,  when  this  is  done  and  done  thoroughly,  the 
Judge  has  kept  all  the  Forms,  Presentment  by  the  Grand-Jury,  and 
Trial  by  a  Petty  Jury ;  but  the  substance  is  all  gone ;  the  Jury  is 
only  a  stalking  horse,  and  behind  it  creeps  the  Judicial  servant  of 
Tyranny,  armed  with  the  blunderbuss  of  law,  —  made  and  loaded  by 
himself, — and  delivers  his  shot  in  the  name  of  law,  but  against  Jus- 
tice, that  purpose  of  all   law.     Thus    can   tyranny   be    established 

—  while  all  the  forms  of  law  are  kept.^ 

Gentlemen  of  the  Jury,  let  me  make  this  more  clear  by  a  special 
case  wholly  fictitious. —  Thomas  Nason,  a  "Non-Resistant"  and  a 
Quaker,  is  a  colored  citizen  of  Boston,  the  son  and  once  the  slave 
of  Hon.  James  Nason  of  Virginia,  but  now  legally  become  a  free 
man  by  self-purchase  ;  he  has  the  bill  of  sale  of  himself  in  his  pocket, 
and  so  carries  about  him  a  title  deed  which  would  perhaps  satisfy 
your  Honors  of  his  right  to  liberty.  But  his  mother  Lizzie  (Ran- 
dol[)h)  Nason,  a  descendant  of  both  Mr.  Jeflerson  and  Mr.  IMadison, 

—  for  Virginia,  I  am  told,  can  boast  of  many  children  descended 
from  two  Presidents,  perhaps  from  three,  who 

"  lioast  tlie  pure  blood  of  an  ilhistrlous  race, 
In  (juiet  How  from  Lucrccc  to  Lucrecc  "  — 

'  See  1  Jiiixliiie,  C'riuiiiial  Triali*,  110.     2  i'arker's  Sermous,  2GG  and  note. 


UNITED   STATES   VS.   NASON.  91 

from  Saxon  master  to  African  slave,  —  is  still  the  bondwoman 
of  the  Hon.  James,  the  father  of  her  son  Thomas.  From  the  "  Plan- 
tation manners  "  of  her  master,  the  concubine,  "  foolishly  dissatisfied 
with  slavery,"  flies  to  Boston,  and  takes  refuge  with  her  Quaker  son, 
who  conceals  his  mother,  and  shelters  her  for  a  time.  But  let  me 
suppose  that  his  Honor  .Judge  Curtis,  while  at  Washington,  fired 
with  that  patriotism  which  is  not  only  habitual  but  natural  and 
indigenous  to  his  Honor,  informs  Mr.  Nason  of  the  hiding-place  of 
his  fi'male  slave,  thus  betraying  a  "  mistress  "  to  her  master,  no  longer, 
alas,  her  "keeper."  It  is  no  injurious  imputation  —  it  is  an  imaginary 
honor  I  attribute  to  the  learned  and  honorable  Judge.  .Mr.  Nason 
sends  the  proper  agent  to  Boston  to  save  the  Union  of  States  by  restor- 
ing the  union  of  master  and  slave.  l\Ir.  George  Ticknor  Curtis, 
fugitive  slave  bill  commissioner,  and  brother  to  the  Hon.  Judge,  issues 
his  warrant  for  kidnapping  the  mother;  his  coadjutor  and  friend,  Mr. 
Butman,  attempts  to  seize  her  in  her  son's  house.  Thomas,  unarmed, 
resists  the  intruder,  and  with  a  child's  pop-gun  drives  that  valiant 
officer  out  of  the  house,  and  puts  the  mother  in  a  place  of  safety,  — 
beneath  the  flag  of  England,  or  the  Pope,  or  the  Czar.  Commis- 
sioner Curtis  telegraphs  the  news  to  Washington,  —  announcing  a 
"  NEW  CASE  OF  TREASON — more  'levying  warl'"  The  Secretaries  of 
State  and  of  War  write  dreadful  letters,  breathing  fire  and  slaughter, 
and  President  Pierce,  a  man  of  most  heroic  courage,  alike  mindful  of 
his  former  actual  military  exploits  at  Chapultepec,  of  his  delegated 
triumph  at  Greytown,  and  of  the  immortal  glory  of  Mr.  Fillmore, 
issues  his  Proclamation,  calling  on  all  good  citizens,  and  especially 
on  the  politicians  of  his  party,  to  "  Save  the  Union  "  from  the  trea- 
son of  this  terrible  Thomas  Nason,  who  will  blow  up  the  Constitu- 
tion with  a  pop-gun  ! 

At  the  next  session  of  the  Honorable  Circuit  Court  of  the  United 
States  in  and  for  the  first  District,  his  Honor  the  Hon.  Benjamin  Rob- 
bins  Curtis,  Judge,  constructs  and  charges  the  Grand-Jury  in  the 
manner  already  set  forth.  He  instructs  them  that  if  any  man,  by 
force  and  arms,  namely,  with  a  pop-gun,  does  resist  a  body  of  United 
States  officers,  attempting  to  kidnap  a  woman,  his  own  mother,  that 
he  thereby  levies  war  against  the  United  States,  and  accordingly 
commits  the  crime  of  "  Treason "  which  consists  in  levying  war 
against  the  United  States  —  the  "  amount  of  force  is  not  material." 
And  it  is  their  duty  to  indict  all  persons  in  that  form  offending.  The 
Attorney,  the  Hon  Benjamin  Franklin  Hallett,  offers  to  "bet  ten  dol- 
lars that  1  will  get"  Nason  "indicted,"  and  urges  the  matter.  But  no 
bill  is  found,  the  Jury  is  discharged,  a  new  Jury  is  summoned,  and 
Mr.  William  W.  Greenough,  the  Brother-in-law  of  the  Judge  is  put  on 


92  TKIAL   BY  JURY. 

it,  "drawn  as  Juror" — and  then  a  "true  bill"  is  found,  Mr.  Hallett 
actually  making  an  indictment  that  cannot  be  quashed  I 

On  the  day  before  Thanksgiving  Thomas  Nason  is  arraigned  ;  and 
is  brought  to  trial  for  this  new  Boston  Massacre  on  the  anniversary  of 
the  old  one  — on  the  Fifth  of  March.  The  judge  constructs  a  Trial- 
Jury  as  before.  Mr.  Hallett,  assisted  by  Mr.  Thomas,  Mr.  George  T. 
Curtis,  and  Commissioner  Loring,  manage  the  case  for  the  govern- 
ment, bringing  out  the  whole  strength  of  the  kidnapping  party,  and 
directing  this  Macedonian  phalanx  of  Humanity  and  Law  and  Piety 
against  a  poor  friendless  negro.  Mr.  Hale,  Mr.  Ellis,  and  Mr.  Dana 
defend  him.  Officer  Butman  and  his  coadjutors — members  of  the 
"  Marshal's  guard"  —  testify  that  Mr.  Nason  attacked  them  with  the 
felonious  weapon  above  named,  putting  them  in  mortal  bodily  fear 
greater  than  that  which  in  Mexico  once  overthrew  the  (future)  Presi- 
dent of  all  this  land  I  Mr.  Herrman,  the  dealer  in  toys,  testifies  that 
he  sold  the  murderous  weapon  for  twenty-five  cents  to  Mr.  Nason 
who  declared  that  he  "could  frighten  Butman  with  it;"  that  it  is  of 
German  manufacture,  and  is  called  a  Knallbiichse ! 

Judge  Curtis  sums  up  the  matter.  He  tells  the  jury,  (1.)  That  they 
are  not  to  judge  of  the  Law  punishing  treason,  but  to  take  it  from 
the  Court.  (2.)  Not  to  judge  what  Act  constitutes  the  Crime  of  Trea- 
son, but  take  that  also  from  the  Court,  and  if  the  Court  decides  that 
offering  a  pop-gun  at  a  rowdy's  breast  constitutes  the  crime  of  treason, 
they  are  to  accept  the  decision  as  constitutional  law.  (3.)  They  are 
not  to  ask  if  it  be  just  to  hang  a  man  for  thus  resisting  a  body  of 
men  who  sought  to  kidnap  his  mother,  for  even  if  it  be  unjust  and 
cruel  it  is  none  of  their  concern,  for  they  must  execute  a  cruel  and 
unjust  law  with  even  more  promptitude  than  a  just  and  humane  one, 
and  in  the  language  of  the  "  Defender  of  the  Constitution,"  "  con- 
quer their  prejudices,"  and  "  do  a  disagreeable  duty."  (4.)  If  they 
think  the  Law  commands  one  thing  and  the  Will  of  God  exactly 
the  opposite,  in  the  well-known  words  of  Judge  Sprague,  they  must 
"obey  both"  by  keeping  the  law  of  man  when  it  contradicts  the  law 
of  God,  for  they  can  never  be  good  CIn-istians  so  long  as  they  scruple 
to  hang  a  Quaker  for  driving  off"  a  kidnapper;  and  obedience  to  the 
law  is  a  moral  duty,  no  matter  how  immoral  the  law  may  be,  and  "  to 
obey  the  law  of  the  land  is  to  obey  the  will  of  GJod."  (5.)  But  they 
have  a  simple  question  of  fact  to  determine ;  namely.  Did  the  Defend- 
ant resist  officer  Butnuin  in  the  manner  set  forth  ?  If  satisfied  of 
that,  they  must  find  him  guilty.  No  mistaken  notions  of  Justice 
must  induce;  (hem  to  refuse  their  verdict — for  they  are  not  to  make 
the  law,  but  only  iielp  execute  it;  and  liieir  conscience  is  so  "  fallible, 
especially  when  the  rights  of  others  are  concerned,  and  may  lead  them 


UNITED  STATES  VS.   NASON.  93 

to  do  great  injustice,"  for  "the  annals  of  the  world  abound  with 
enormities  committed  by  a  narrow  and  darkened  conscience."  They 
must  not  ask  if  it  be  "religious"  to  do  so  —  for  to  use  the  words  of 
the  most  religious  of  all  Americans,  a  man  of  most  unspotted  life  in 
public  and  pri'.'ate,  "  Religion  has  nothing  to  do  with  politics,"  and  this 
is  a  political  trial.  If  there  be  any  injustice  in  the  law  and  its  execu- 
tion the  blame  lies  with  the  makers  thereof  not  with  the  jurors,  and 
they  may  wash  their  hands  as  clean  as  Pilate's  from  the  blood  of 
Christ.  Besides,  if  there  be  injustice  the  President  can  pardon  the 
offender,  and  from  his  well-known  religious  character — which  rests 
on  the  unbiased  testimony  of  his  oiun  minidcr  and  the  statement  of 
several  partisan  newspapers  published  in  the  very  heat  of  the  election, 
when  men,  and  especially  politicians  looking  for  oflice,  never  exag- 
gerate, —  he  doubtless  "  will  listen  to  petitions  for  a  commutation  of 
punishment!  " 

But  there  is  no  injustice  in  it  —  for  slavery  is  part  of  the  lex  terrtc, 
the  law  of  the  land,  protected  by  the  Constitution  itself,  which  is  the 
Lex  Suprema  —  the  Supreme  Law  of  the  Land,  and  nearly  eighty 
years  old  I  Besides,  "  Slavery  is  not  immoral,"  not  contrary  to  the 
public  policy  of  Massachusetts  ;  and,  moreover,  the  "  mother  "  whom 
the  criminal  actually  rescued,  was  a  "foreigner"  and  "whatever 
rights  she  had,  she  had  no  right  here."^ 

But  it  is  not  a  cruel  or  an  unchristian  thing  to  require  a  negro  lay- 
man to  allow  his  mother  to  be  kidnapped  in  his  own  house  — 
especially  if  she  were  a  born  slave,  and  so  by  the  very  law  "  a  chattel 
personal  to  all  uses,  intents,  and  purposes  whatever,"  and  of  course 
wholly  divested  of  all  natural  rights,  even  if  a  colored  person  ever 
had  any  —  for  an  eminent  American  minister,  of  one  of  the  most  en- 
lightened sects  in  Christendom,  has  publicly  offered  to  send  his  own 
freeborn  mother  into  bondage  for  ever  I 

Moreover,  if  the  jurors  do  not  find  a  verdict  of  guilty,  then  they 
themselves  are  guilty  of  Perjury  ! 

So  the  jury,  without  leaving  their  seats,  find  him  guilty;  the  judge 
sentences ;  the  President  signs  the  Death-warrant,  and  Marshal  Free- 
man hangs  the  man  —  to  the  great  joy  of  the  Commissioners  and 
the  Marshal's  guard  who  vacate  the  brothels  once  more  and  attend 
on  that  occasion  and  triamph  over  the  murdered  Quaker. 

But  the  mischief  does  not  stop  there;  the  Boston  slave-hunters  are 
not  yet  satisfied  with  blood;  the  judge  constructs  another  grand-jury 
as  before,  only  getting  more  of  his  kinsfolk  thereon,  and  taking  his 
law  from  the  impeached  Judges  Kelyng  and  Chase,  charges  that  all 

^  See  Hon.  Judge  Curtis's  Speech  at  the  Union  Meeting  in  Faueull  Hall,  Xovembcr 
26,  1850. 


94  TRIAL    BY   JURY. 

persons  who  advise  to  an  act  of  levying  war,  or  evince  an  "  express 
liking"  for  it,  or  ^^approbation"  of  it,  are  also  guilty  of  treason;  and 
"in  treason  all  are  Principals."  Accordingly  the  jury  must  indict 
all  who  have  evinced  an  "  express  liking  "  of  the  rescue,  though  they 
did  not  evince  approval  of  the  rescue  by  such  means.  It  appears 
that  Eev.  Mr.  Grimes  in  the  meeting-house  the  Sunday  before  the 
treason  was  consummated,  had  actually  prayed  that  God  would 
"break  the  arm  of  the  oppressor  and  let  the  oppressed  go  free;"  that 
he  read  from  a  book  called  the  Old  Testament,  "  Bewray  not  him  that 
wandereth,"  "  Hide  the  outcast,"  and  other  paragraphs  and  sentences 
of  like  seditious  nature.  Nay,  that  from  the  New  Testament  he  had 
actually  read  the  Sermon  on  the  Mount,  especially  the  Golden  Rule 
and  the  summing  of  the  Law  and  the  Prophets  in  one  word,  Love, — 
and  had  applied  this  to  the  case  of  fugitive  slaves ;  moreover,  that  he 
had  read  the  xxvth  chapter  of  Matthew  from  the  31st  to  the  46th 
verse,  with  dreadful  emphasis. 

Nay,  anti-slavery  men — in  lectures  —  and  in  speeches  in  the  Music 
Hall,  which  was  built  by  pious  people  —  and  in  Faneuil  Hall,  which 
was  the  old  Cradle  of  Liberty,  had  actually  spoken  against  man-steal- 
ing,—  and  even  against  some  of  the  family  of  kidnappers  in  Boston! 

Still  further,  he  adds,  with  great  solemnity,  a  woman  —  a  negro 
woman,  —  the  actual  wife  of  the  criminal  Nason  —  had  brought  in- 
telligence—  to  her  husband  — that  Mr.  George  T.  Curtis,  —  the  brother 
of  the  judge,  —  had  issued  his  warrant  —  and  Mr.  Butman — "with 
a  monstrous  watch  "  — was  coming  to  execute  it  —  she  told  her  hus- 
band,—  and — incited  him  to  his  dreadful  crime!  If  you  find  these 
facts  you  must  convict  the  prisoners. 

So  thirty  or  forty  more  are  hanged  for  treason. 

Gentlemen  of  the  Jury,  these  fictitious  cases  doubtless  seem  extrav- 
agant to  you.  I  am  glad  they  do.  In  peaceful  times,  in  the  majority 
of  cases  there  is  no  disagreement  between  the  law,  the  judge,  and  the 
jurors;  the  law  is  just,  or  at  least  is  an  attempt  at  justice,  the  judge 
wishes  to  do  justice  by  means  thereof,  and  the  jurors  aim  at  the  same 
thing.  In  such  cases  there  is  no  motive  for  doing  wrong  to  any  per- 
son :  so  the  judge  fairly  interprets  the  righteous  and  wholesome  law, 
the  jurors  willingly  receive  the  interpretation  and  apply  it  to  the 
special  case,  and  substantial  justice  is  done.  This  happens  not  only 
in  civil  suits  between  party  and  party,  but  also  in  most  of  the  crimi- 
nal cases  between  the  l^nblic  and  the  Defendant.  But  in  times  of 
great  political  excitement,  in  a  period  of  crisis  and  transition,  when 
one  party  seeks  to  establish  a  despotism  and  deprive  some  other  class 
of  men  of  their  natural  rights,  cases  like  those  I  have  imagined 
actually  happen.  Then  there  is  a  disagreement  between  the  judge 
and  the  jury  ;  nay,  often  between  the  jury  and  the  special  statute 


TIIllOCKMORTOX    AND    TENN'.  95 

wherewith  the  government  seeks  to  work  lis  iniquity.  It  is  on  such 
occasions  that  the  great  value  of  this  institution  appears,  —  then  the 
jury  hold  a  shield  over  the  head  of  their  brother  and  defend  him  from 
the  malignity  of  tlie  government  and  the  (loliath  of  injustice,  appoint- 
ed its  champion  to  defy  the  Law  of  tlx;  living  (:Jod,  is  smote  in  the 
forehead  by  the  smooth  stone  taken  from  a  country  brook,  and  lies 
there  slain  by  a  simple  rustic  hand;  for  in  such  cases  the  jary  fall 
back  on  their  original  rights,  judge  of  the  Fact,  the  Law,  and  the  Ap- 
plication of  the  Law  to  the  Fact,  and  do  justice  in  spite  of  the  court, 
at  least  prevent  injustice. 


Now,  Gentlemen  of  the  Jury,  I  will  mention  some  examples  of  this 
kind,  partly  to  show  the  process  by  which  attempts  have  been  made 
to  establish  despotism,  that  by  the  English  past  you  may  be  warned 
for  the  American  present  and  future;  and  partly  that  your  function  in 
this  and  all  cases  may  become  clear  to  you  and  the  Nation.  The  facts 
of  history  will  show  that  my  fancies  are  not  extravagant. 

1.  In  April,  1554,  just  three  hundred  and  one  years  ago  this  very 
month,  in  England,  Sir  Nicolas  Throckmorton,  a  gentleman  of  dis- 
tinguished family,  was  brought  to  trial  for  high  treason.  He  had 
held  a  high  military  office  under  Henry  VIII.  and  Edward  VL,  but 
"  made  himself  obnoxious  to  the  Papists,  by  his  adherence  to  some 
of  the  persecuted  Reformers."  With  his  two  brothers  he  attended 
Anne  Askew  to  her  martyrdom  when  she  was  burnt  for  heresy,  where 
they  were  told  to  "  take  heed  to  your  lives  for  you  are  marked  men." 
He  was  brought  to  trial  April  17th,  1554,  the  first  year  of  Bloody  Mary. 
Of  course  he  was  allowed  no  counsel ;  the  court  was  insolent,  and 
demanded  his  condemnation.  But  the  jury  acquitted  him ;  where- 
upon the  court  shut  the  livelve  jurors  in  prison  !  Four  of  them  made 
their  peace  with  the  judges,  and  were  delivered:  but  eight  were  kept 
in  jail  till  the  next  December,  and  then  fined,  —  three  of  them  ^60 
apiece,  and  five  £225  apiece. 

This  is  one  of  the  earliest  cases  that  I  find,  where  an  English  jury 
in  a  political  trial  refused  to  return  such  a  verdict  as  the  tyrant  de- 
ma  nded.^ 

2.  In  September,  1670,  William  Penn,  afterwards  so  famous,  and 
William  Mead,  were  brought  to  trial  before  the  Lord  Mayor  of  Lon- 

^  See  the  case  in  1  St.  Tr.  8G9,  and  1  Jardine,  40,  also  115.  The  great  juridical 
attacks  upon  English  Liberty  -were  directed  against  the  Person  of  the  Subject,  and  ap- 
pear in  the  trials  for  Treason,  but  as  in  such  trials  the  defendant  had  no  counsel, 
the  great  legal  battle  for  English  Liberty  was  fought  over  the  less  important  cases 
where  only  property  was  directly  concerned.  Hence  the  chief  questions  seem  only  to 
relate  to  money. 


96  TRIAL    BY   JURY. 

don,  a  creature  of  the  king,  charged  with  ''  a  tumultuous  assembly." 
For  the  Quaker  meeting-house  in  Grace  Church  Street,  had  been 
forcibly  shut  by  the  government,  and  Mr.  Penn  had  preached  to  an 
audience  of  Dissenters  in  the  street  itself.  The  court  was  exceed- 
ingly  insolent  and  overbearing,  interrupting  and  insulting  Ihe  defend- 
ants continually.  The  jury  found  a  special  verdict  —  "guilty  of 
speaking  in  (3rrace  Church  Street."  The  judge  sent  them  out  to  re- 
turn a  verdict  more  suitable  to  the  desire  of  the  government.  Again 
they  substantially  found  the  same  verdict.  "  This  both  Mayor  and 
Recorder  resented  at  so  high  a  rate  that  they  exceeded  the  bounds  of 
all  reason  and  civility."  The  Recorder  said,  "  You  shall  not  be  dis- 
missed till  we  have  a  verdict  that  the  court  will  accept ;  you  shall  be 
locked  up  without  meat,  drink,  fire,  and  tobacco  ;  you  shall  not  think 
thus  to  abuse  the  court;  we  will  have  a  verdict  by  the  help  of  God, 
or  you  shall  starve  for  it!"  When  Penn  attempted  to  speak,  the 
Recorder  roared  out,  "  Stop  that  prating  fellow's  mouth  or  put  him 
out  of  court."  The  jury  were  sent  out  a  third  time,  and  kept  all 
night,  with  no  food,  or  drink,  or  bed.  At  last  they  returned  a  verdict 
of  "not  guilty,"  to  the  great  wrath  of  the  court.  The  judge  fined  the 
jurors  forty  marks  apiece,  about  $140,  and  put  them  in  jail  until  they 
should  pay  that  sum.  The  foreman,  Edward  Bushel,  refused  to  pay 
his  fine  and  was  kept  in  jail  until  he  was  discharged  on  Habeas  Cor- 
pus in  November.  Here  the  attempt  of  a  wicked  government  and  a 
cruel  judge  was  defeated  by  the  noble  conduct  of  the  jurors,  who 
dared  be  faithful  to  their  duty.^ 

3.  In  1681  an  attempt  was  made  to  procure  an  indictment  against 
the  Earl  of  Shaftesbury,  for  High  Treason.  The  Bill  was  presented 
to  the  Grand-Jury  at  London;  Chief  Justice  Pemberton  gave  them 
the  charge,  at  the  king's  desire — it  was  Charles  II.  They  were 
commanded  to  examine  the  evidence  in  public  in  the  presence  of  the 
court,  in  order  that  they  might  thus  be  overawed  and  forced  to  find  a 
bill,  in  which  case  the  court  had  matters  so  arranged  that  they  were 
sure  of  a  conviction.  The  court  took  part  in  examining  the  wit- 
nesses, attempting  to  make  out  a  case  against  the  Earl.  But  the 
jury  returned  the  bill  with  Ignoramus  on  it,  and  so  found  no  indict- 
ment. The  spectators  rent  the  air  with  their  shouts.  The  court  was 
in  great  wrath,  and  soon  after  the  king  seized  the  Charter  of  London, 
as  I  have  already  shown  you,  seeking  to  destroy  that  strong-hold  of 
Liberty.  Shaftesbury  escaped  —  the  jury  was  discharged.  Why  did 
not  the  court  summon  another  jury,  and  the  chief  justice  put  his 
brother-in-law  on  it?  Roger  Coke  says,  "But  as  the  knights  of 
Malta  could  make  knights  of  their  order  for  eight  pence  a  piece,  yet 

'  0  Si.  Tr.  051  ;  Dixon's  Life  of  renn ;  22  St.  Tr.  925. 


THE    SEVEN   BISHOPS.  97 

could  not  make  a  soldier  or  seaman  ;  so  these  kings  [the  Stuarts] 
though  theij  could  make  whatjiidg-es  the/j  pleased  to  do  their  business, 
yet  could  not  make  a  g-rand-Jurij.''^  For  the  grand-juries  were  returned 
by  the  Sheriffs,  and  the  sheriffs  were  chosen  by  the  Livery,  the  cor- 
poration of  London.  This  fact  made  the  king  desire  to  seize  the 
charter,  then  he  could  make  a  grand-jury  to  suit  himself,  out  of  the 
kinsfolk  of  the  judge.^ 

4.  Next  comes  the  remarkable  case  of  the  Seven  Bishops,  which  I 
have  spoken  of  already.^  You  remember  the  facts.  Gentlemen.  The 
king,  James  II.,  in  1688,  wishing  to  overturn  Protestantism  —  the  bet- 
ter to  establish  his  tyranny  —  issued  his  notorious  proclamation, 
setting  aside  the  laws  of  the  land  and  subverting  the  English  Church. 
He  commanded  all  Bishops  and  other  ministers  of  religion  to  read  the 
illegal  proclamation  on  a  day  fixed.  Seven  Bishops  presented  to  him 
a  petition  in  most  decorous  language,  remonstrating  against  the 
Proclamation,  and  asking  to  be  excused  from  reading  it  to  their  con- 
srresations.  The  kins:  consulted  with  Father  Petre, —  a  Jesuit,  his 
confessor  —  on  the  matter,  and  had  the  bishops  brought  to  trial  for  a 
misdemeanor,  for  publishing  "  a  seditious  libel  in  writing  against  his 
majesty  and  his  government."     It  was  "  obstructing  an  officer." 

Then  the  question  before  the  trial-jury  was.  Did  the  seven  bishops, 
by  presenting  a  petition  to  the  king — asking  that  they  might  not  be 
forced  to  do  an  act  against  the  laws  of  England  and  their  own  con- 
sciences—  commit  the  offence  of  publishing  a  seditious  libel;  and, 
Shall  they  be  punished  for  that  act  ?  All  the  judges  but  two,  Hollo- 
way  and  Powell,  said  "  Yes,"  and  the  jury  were  so  charged.  But 
the  jury  said,  "  Not  guilty."  The  consequence  was  this  last  of  the 
Stuarts  was  foiled  in  his  attempt  to  restore  papal  tyranny  to  Eng- 
land and  establish  such  a  despotism  as  already  prevailed  in  France 
and  Spain.  Here  the  jury  stood  between  the  tyrant  and  the  Liberties 
of  the  People. 

Gentlemen  of  the  Jury,  let  me  show  you  how  that  noble  verdict 
was  received.  Soon  as  the  verdict  was  given,  says  Bishoj:)  Barnet, 
"  There  were  immediately  very  loud  acclamations  throughout  West- 
minster Plall,  and  the  words  '  Not  guilty,'  '  Not  guilty,'  went  round 
with  shouts  and  huzzas;  thereat  the  King's  Solicitor  moved  very 
earnestly  that  such  as  had  shouted  in  the  court  might  be  committed. 
But  the  shouts  were  carried  on  through  the  cities  of  Westminster 
and  London  and  flew  presently  to  Hounslow  Heath,  where  the 
soldiers  in  the  camp  echoed  them  so  loud  that  it  startled  the  king."  ^ 
"  Every  man  seemed  transported  with  joy.     Bonfires  were  made  all 

'  8  St.  Tr.  759,  see  the  valuable  matter  in  tlie  notes,  also  2  Ilallam,  330  and  notes. 
=  See  above,  p.  32.  M2  St.  Tr.  430. 

9 


98  TRIAL   BY   JURY. 

about  the  streets,  and  the  news  going  over  the  nation,  produced  the 
like  rejoicings  all  England  over.  The  king's  presence  kept  the  army 
in  some  order.  But  he  was  no  sooner  gone  out  of  the  camp,  than  he 
was  followed  with  an  universal  shouting,  as  if  it  had  been  a  victory 
obtained."  ^  "  When  the  Bisliops  withdrew  from  the  court,  they 
were  surrounded  by  countless  thousands  who  eagerly  knelt  down 
to  receive  their  blessing."  Of  course  the  two  judges  who  stood  out 
for  the  liberties  of  the  citizens,  were  removed  from  office  I 

5.  Here  is  another  remarkable  case,  that  of  William  Owen,  in 
1752,  These  are  the  facts.  In  1750  there  was  a  contested  election  of 
a  member  of  Parliament  for  Westminster.  Hon.  Alexander  Mur- 
ray, an  anti-ministerial  member  of  the  Commons,  was  denounced  to 
the  House  for  his  conduct  during  the  election,  and  it  was  ordered 
that  he  should  be  confined  a  close  prisoner  in  Newgate,  and  that  he 
receive  his  sentence  on  his  knees.  He  refused  to  kneel,  and  was 
punished  with  great  cruelty  by  the  bigoted  and  intolerant  House. 
Mr.  Owen,  who  was  a  bookseller,  published  a  pamphlet,  entitled 
"  The  Case  of  Alexander  Murray,  Esq.,"  detailing  the  facts  and  com- 
menting thereon.  For  this  an  information  was  laid  against  him, 
charging  him  with  publishing  a  "  wicked,  false,  scandalous,  seditious, 
and  malicious  libek" 

On  the  trial,  the  Attorney-General,  Ryder,  thus  delivered  him- 
self:— 

"  What !  —  shall  a  person  appeal  from  that  Court,  wlio  are  the  only  judges  of  things 
belonging  to  them,  the  House  of  Commons  I  mean.  An  appeal !  To  -whom  ?  To  a 
mob  ?  Must  Justice  be  appealed  from  ?  To  -whom  ?  To  injustice  ?  Appeal  to  '  the 
good  people  of  England,'  '  particularly  the  inhabitants  of  Westminster' !  The  House  of 
Commons  are  the  good  people  of  England,  being  the  representatives  of  the  people. 
The  rest  are  —  -what  ?  Nothing  —  unless  it  be  a  mob.  But  the  clear  meaning  of  this 
libel  was  an  appeal  to  violence^  in  foct,  and  to  stigmatize  the  House."  "  Then  he 
charges  the  House  with  sinking  material  evidence  ;  %Yhich  in  fact  is  accusing  the  House 
of  injustice.  This  is  a  charge  the  most  shocking;  the  most  severe,  and  the  most  unjust 
and  virulent,  against  the  good,  the  tender  House  of  Commons ;  that  safeguard  of  our 
liberty,  and  guardian  of  our  welfare." 

"  This  libel  .  .  .  -will  be  found  the  most  powerful  invective  that  the  skill  of  man  could 
invent.  I  will  not  say  the  skill,  but  the  wit,  art,  and  false  contrivance  of  man,  insti- 
gated by  Satan;  "  "to  say  that  this  is  not  a  libel,  is  to  say  that  there  is  no  justice, 
equity,  or  right  in  the  world." 

The  Solicitor-General  told  the  Jury  that  they  were  only  to  inquire 
if  Mr.  .Owen  jmblished  the  pamphlet,  ^^  the  rest  folloivs  of  course;'''' 
"  you  are  upon  your  oaths;  you  judge  of  the  facts  .  .  .  and  only  them" 
Chief  Justice  Lee  summed  up  the  evidence  "  and  delivered  it  as  his 


'  liurnet's  Own  Times,  470.     Sec  also  2  Campbell,  Justices,  89,  et  seq. 


OWEN   AND   MILLER.  99 

opinion,  that  the  Jury  ov^ht  to  find  iJie  defendant  gnilU) ;  for  he  thought 
\hc  fact  nf  publication  ic as  full ij  proved;  and  if  so  they  could  not  avoid 
bringing'  in  the  defendant  guilty.''^ 

The  jury  returned,  "  Not  guilty  ; "  but  Ryder,  the  Attorney-General, 
put  this  question.  Do  you  thinlc  the  evidence  is  not  sufficient  to  con- 
vince you  that  Oiven  did  sell  the  book?  The  foreman  stuck  to  his 
general  verdict,  "  Not  guilty,"  "  Not  guilty  ; "  and  several  of  the  jury- 
men said,  "  that  is  our  verdict,  my  lord,  and  we  abide  by  it."  "  Upon 
which  the  court  broke  up,  and  there  was  a  prodigious  shout  in  the 
hall."  Then  "the  Jury  judged  as  to  facts,  law,  and  justice  of  the 
whole,  and  therefore  did  not  answer  the  leading  question  which  was 
so  artfully  put  to  them."  ^  Of  course  the  insolent  Attorney-General 
was  soon  made  "  Lord  Chief  Justice,"  and  rode  the  bench  after  the 
antiquated  routine. 

This  was  the  third  great  case  in  which,  the  Jury  had  vindicated  the 
right  of  speech. 

6.  Here  is  another  case  very  famous  in  its  day,  and  of  great  value 
as  helping  to  establish  the  rights  of  juries,  and  so  to  protect  the 
natural  right  of  the  citizens  —  the  Trial  of  John  Miller  for  reprinting 
Junius's  Letter  to  the  King,  in  1770. 

Here  are  the  facts.  Mr.  Miller  was  the  publisher  of  a  newspaper 
called  the  London  Evening  Post,  and  therein,  on  December  19,  1769, 
he  reprinted  Junius's  celebrated  Letter  to  the  King.  For  this  act,  an 
information  ex  officio  was  laid  against  him,  wherein  he  was  charged 
with  publishing  a  false,  wicked,  seditious,  and  malicious  libel.  A  suit 
had  already  been  brought  against  Woodfall,  the  publisher  of  the 
Public  Advertiser,  in  which  the  letter  originally  appeared,  but  the 
prosecution  had  not  turned  out  to  the  satisfaction  of  the  government, 
nor  had  the  great  question  been  definitely  settled.  So  this  action 
was  brought  against  Mr.  Miller,  who  reprinted  the  original  letter  the 
day  of  its  first  appearance.^ 

Solicitor-General  Thurlow,  —  whom  you  have  met  before.  Gentle- 
men,—  opened  the  case  for  the  Crown,  and  said:  — 

"  I  have  not  of  myself  been  able  to  imagine  .  .  .  that  there  is  a  serious  man  of  the 
profession  in  the  kingdom  who  has  the  smallest  doubt  whether  this  ought  to  be  deemed 
a  libel  or  not; "  "  for  I  neither  do,  nor  ever  will,  attempt  to  lay  before  a  jury,  a  cause, 
in  which  I  was  under  the  necessity  of  stating  a  single  principle  that  went  to  intrench, 
in  the  smallest  degree,  upon  the  avowed  and  acknowledged  liberty  of  the  subjects  of 
this  country,  even  with  regard  to  the  press.  The  complaint  I  have  to  lay  before  you 
is  that  that  liberty  has  been  so  abused,  so  turned  to  licentiousness,  .  .  .  that  under  the 
notion  of  arrogating  liberty  to  one  man,  that  is  the  writer,  printer,  and  publisher  of 

1  IS  St..  Tr.  1203;  14  Pari.  Hist.  888,  1003;  3  Hallam,  200;  2  Campbell,  Justices,  198. 

2  ;0  St.  Tr.  803,  895,  869;  Woodfall's  Junius  (Bohu,  1850),  Preface,  p.  94,  Appendix,  p.  471;  2 
Campbell,  Justices,  363;  5  Mahon. 


100  TRIAL   BY   JURY. 

this  paper,  thoy  do  .  .  .  annihilate  and  destroy  the  hbcrty  of  all  men,  more  or  less. 
Undoubtedly  the  man  that  has  indulged  the  libcrti/  of  robbing  upon  the  hi/jhwu//,  has  a 
,very  considerable  portion  of  it  allotted  to  him."  The  defendant  "  has  published  a 
paper,  in  which,  concerning  the  King,  concerning  the  House  of  Commons,  and  con- 
cerning the  great  officers  of  State,  concerning  the  public  aifairs  of  the  realm,  there  are 
uttered  things  of  such  tendency  and  application  as  ought  to  be  punished."  "  When  we 
are  come  to  that  situation,  when  it  shall  be  lawful  for  any  men  in  this  country  to  speak 
of  the  sovereign  [George  III.]  in  terms  attempting  to  fix  upon  him  such  contempt, 
abhorrence,  and  hatred,  there  is  an  end  of  all  government  whatsoever,  and  then  liberty 
is  indeed  to  shift  for  itself."  He  quotes  from  the  paper :  "  '  He  [the  king]  has  taken  a 
decisive  personal  part  against  the  subjects  of  America,  and  those  subjects  know  how  to 
distinguish  the  sovereign  and  a  venal  Parliament,  upon  one  side,  from  the  real  senti- 
ments of  the  English  nation  upon  the  other.'  For  God's  sake  is  that  no  libel  ?  To 
talk  of  the  Mnrj  as  talincj  a  part  of  an  hostile  sort  against  one  branch  of  his  subjects,  and 
at  the  same  time  to  connect  Jiim  .  .  .  icith  the  p)arliaincnt  ichich  he  calls  a  renal  jictrlia- 
ment ;  is  that  no  libel  ?  " 

Lord  Mansfield,  —  the  bitterest  enemy  of  the  citizens'  right  of  speech 
and  of  the  trial  by  jury,  — charged  upon  the  jury,  "  The  question  for 
you  to  try  .  .  .  is,  whether  the  defendant  did  print,  or  publish,  or  both, 
a.  paper  of  the  tenor,  and  of  the  meaning,  so  cliarged  by  the  informa- 
tionV  "  If  it  is  of  the  tenor  and  meaning  set  out  in  the  information, 
the  next  consideration  is,  whether  he  did  print  and  publish  it^  "  If 
you  .  .  .  find  the  defendant  not  guilty,  the  fact  established  by  that 
verdict  is,  he  did  not  publish  a  paper  of  that  meaning-;^'  "the  fact 
finally  established  by  your  verdict,  if  you  find  him  guilty,  is,  that 
he  printed  and  published  a  paper,  of  the  tenor  and  of  the  meaning  set 
fo?'th  in  the  information;^^  "but  you  do  not  give  an  opinion  .  .  . 
ivhether  it  is  or  not  laiuful  to  print  a  paper  ...  of  the  tenor  and  mean- 
ing in  the  information ; "  "  if  in  point  of  fact  it  is  innocent,  it  would 
be  an  innocent  thing." 

Thus  practically  the  judge  left  the  jury  only  one  thing  to  determine. 
Did  Mr.  Miller  print  Junius's  letter  to  the  king?  That  was  a  fact  as 
notorious  as  it  now  is  in  Boston  that  the  Dailtj  Advertiser  supported 
the  fugitive  slave  bill,  and  helped  its  execution,  for  the  letter  to  the 
king  was  there  in  Mr.  Miller's  journal  as  plainly  as  those  defences 
of  the  fugitive  slave  bill  were  in  the  Advertiser.  If  the  jury  said 
"  guilty,"  the  court  had  the  defendant  in  their  claws,  —  and  all  the 
wrath  of  the  most  malignant  tories  would  fall  on  him  and  rend  him 
in  pieces.  But  the  jury  fell  back  on  their  legitimate  function  to  deter- 
mine the  Fact,  the  Law,  and  the  Application  of  the  law  to  the  fact, 
and  returned  a  verdict,  Not  Guilty,  which  a  great  multitude  repeated 
with  loud  acclaim  I 

7.  Next,  CJciitlciiicii,  I  will  relate  a  few  cases  in  which  Ww.  govern- 
ment set  all  justice  at  defiance  and  clove  down  the  right  of  speech, 


REIGN    OF   TERROR   IX   ENGLAND.  101 

commonly  packing  snbmissive  juries.  In  1790  and  fallowing  years, 
while  the  French  Revolution  was  in  progress,  the  thoughtful  eyes  of 
England  fell  on  the  evils  of  her  own  country.  America  was  already 
a  Republic,  just  recovering  from  the  shock  of  violent  separation  from 
her  mother,  —  young,  poor,  but  not  unprosperous,  and  full  of  future 
promise  too  obvious  to  escape  the  sagacious  politicians  who  there  saw 
a  cause  — • 

" with  fear  of  change, 

Perplexing  Kings." 

The  people  of  France,  by  a  few  spasmodic  efforts,  broke  the  three- 
fold chain  of  Priest,  King,  and  Noble,  and  began  to  lift  up  their  head. 
But  Saxon  England  is  sober,  and  so  went  to  work  more  solemnly 
than  her  mercurial  neighbor.  And  besides,  the  British  people  had 
already  a  firm,  broad  basis  of  personal  freedom  to  stand  on.  Much 
was  thought,  written,  and  spoken  about  reform  in  England,  then  most 
desperately  needing  it.  The  American  Revolution  had  English  ad- 
niircTs  whom  no  courts  could  silence.  Nay,  at  first  the  French  Revolu- 
tion delighted  some  of  the  ablest  and  best  men  in  Britain,  who  therein 
beheld  the  carrying  out  of  the  great  Principles  which  Aristotle  and 
Machiavelli  had  laid  down  as  the  law  of  the  historical  development 
and  social  evolution  of  mankind.  They  wished  some  improvement 
in  England  itself.  But  of  course  there  was  a  strong  opposition  made 
to  all  change.  Parliament  refused  to  relieve  the  evils  which  were 
made  obvious.  The  upper  House  of  Nobles  was  composed  of  the 
Elder  Sons  of  the  families  which  had  a  social  and  pecuniary  interest 
in  oppressing  the  people,  and  the  lower  House  "  consisted  "mainly  of 
the  Younger  Sons  of  the  same  families,  or  still  worse  the  purchased 
dependents"  of  their  families.  Societies  were  organized  for  Reform, 
such  as  the  "London  Corresponding  Society,"  "the  Friends  of  the 
People,"  etc.,  etc.  The  last  mentioned  contained  many  literary,  scien- 
tific, and  political  men,  and  about  thirty  members  of  Parliament. 
Great  complaiiits  were  made  in  public  at  the  inequality  of  Representa- 
tion in  Parliament.  Stormy  debates  took  place  in  Parliament  itself 
—  such  as  we  have  not  yet  heard  in  America,  but  which  wicked  and 
abandoned  men  are  fast  bringing  upon  us.  Pitt  and  Fox  were  on 
opposite  sides. 

" and  such  a  frown 


Each  cast  at  the  other,  as  when  two  black  clouds, 
With  Heaven's  artillery  fraught,  come  rattling  on 
Over  the  Caspian,  then  stand  front  to  front, 
Hovering  a  space,  till  winds  the  signal  blow 
To  join  their  dark  encounter  in  mid  air." 

9* 


102  TRIAL   BY   JURY. 

At  that  time  the  House  of  Commons  was  mainly  filled  with  crea- 
tures of  a  few  jDovverful  men  ;  thus  91  commoners  elected  139  mem- 
bers of  the  commons,  and  71  peers  also  elected  163  ;  so  302  British 
members  of  Parliament,  besides  45  more  from  Scotland, —  347  in  all, 
—  were  returned  by  162  persons.  This  was  called  "  Representation 
of  the  People."  From  the  party  who  feared  to  lose  their  power  of 
tyranny,  there  went  out  the  decree,  "  Discussion  on  the  subject  of  na- 
tional grievances  must  be  suppressed,  in  Parliament  and  out  of  Par- 
liament." Violent  attempts  were  made  to  suppress  discussion.  In 
short,  the  same  efforts  were  made  in  England  which  were  attempted 
in  New  York  and  Boston  in  1850  and  the  two  following  years,  till 
they  were  ended  by  a  little  sprinkling  of  dust.  But  in  Britain  the 
public  mind  is  harsher  than  ever  in  America,  and  the  weapons  which 
broke  in  the  hand  of  Old  England  were  much  more  formidable  than 
that  which  here  so  suddenly  snapped,  and  with  such  damage  to 
the  assassinating  hand. 

(1.)  In  1792,  John  Lambert  and  two  others  published  an  advertise- 
ment in  the  London  IMorning  Chronicle,  with  which  they  were  t:on- 
nected  as  printers  or  proprietors,  addressed  "  to  the  friends  of  free 
inquiry  and  the  general  good,"  inviting  them  in  a  peaceful,  calm,  and 
unbiased  manner  to  endeavor  to  improve  the  public  morals  in  respect 
to  law,  taxation,  representation,  and  political  administration.  They 
were  prosecuted,  on  ex  officio  information,  for  a  "  false,  wicked,  scan- 
dalous, and  seditious  libel."  The  government  made  every  effort  to 
secure  their  conviction.     But  it  failed.^ 

(2.)  The  same  year,  Duffm  and  Lloyd,  two  debtors  in  the  Fleet 
Prison,  one  an  American  citizen,  wrote  on  the  door  of  the  prison 
chapel  "  this  house  to  let ;  peaceable  possession  wnll  be  given  by  the 
present  tenants  on  or  before  the  first  day  of  January,  1793,  being  the 
commencement  of  liberty  in  Great  Britain.  The  republic  of  France 
having  rooted  out  despotism,  their  glorious  example  and  success 
against  tyrants  renders  infamous  Bastiles  no  longer  necessary  in  Eu- 
rope." They  also  w^ere  indicted  for  a  "  wicked,  infamous,  and  sedi- 
tious fibel,"  and  found  guilty.     Lloyd  was  put  in  the  pillory  I- 

(3.)  In  1793,  Rev.  William  Frend,  of.  the  University  of  Cambridge, 
published  a  harmless  pamphlet  entitled  "  Peace  aild  Union  recom- 
mended to  the  associated  bodies  of  Republicans  and  anti-Republi- 
cans." He  was  brought  to  trial,  represented  as  a  "  heretic,  deist, 
infidel,  and  atheist,"  and  by  sentence  of  the  court  banished  from  the 
university.'^ 

1  22  St.  Tr.  023.  ■  2  St.  Tr.  1793. 

"  22  St.  'I'l'.  ■"):'.'!.  —  So  late  as  1820,  the  chief  justice  puni.slicd  an  editor  with  a  fine 
of  .£500,  for  puljlisliiii}^  an  account  of  a  trial  for  high  treason.  See  33  St.  Tr.  15G4, 
also  22  St.  Tr.  298;  2  Campbell,  Justices,  363,  371  et  al. 


REIGN  OF  TERROR  IN  ENGLAND.  103 

(4.)  The  same  year,  John  Frost,  Esq.,  "  a  gentleman  "  and  attorney, 
when  slightly  intoxieated  after  dinner,  and  provoked  by  oth(>rs,  said, 
"  I  am  for  equality.  I  see  no  reason  why  any  man  should  not  be 
upon  a  footing  with  another;  it  is  every  man's  birthright."  And 
when  asked  if  he  would  have  no  king,  he  answered,  "  Yes,  no  king; 
the  constitution  of  this  country  is  a  bad  one."  This  took  place  in  a 
random  talk  at  a  tavern  in  London.  He  was  indicted  as  a  person  of 
a  "depraved,  impious,  and  discjuiet  mind,  and  of  a  seditious  disposi- 
tion, and  contriving,  practising,  and  maliciously,  turbulently,  and 
seditiously  intending  the  peace  and  common  tranquillity  of  our  lord 
the  king  and  his  laws  to  disturb,"  "  to  the  evil  example  of  all  others  in 
like  case  offending."  He  was  sentenced  to  six  months  iii  Newgate, 
and  one  hour  in  the  pillory!  He  must  find  sureties  for  good  behavior 
for  iive  years,  himself  in  XoOO,  two  others  in  £100  each,  be  imprisoned 
until  the  sureties  were  found,  and  be  struck  from  the  list  of  attornies!  ^ 

(5.)  Rev.  William  Winterbotham,  the  same  year,  in  two  sermons,  ex- 
posed some  of  the  evils  in  the  constitution  and  administration  of  Eng- 
land, and  for  that  was  fined  £200,  and  sentenced  to  jail  for  four  years, 
—  a  good  deal  more  than  $300  and  twelve  months'  imprisonment.^ 

(G.)  The  same  year,  Thomas  Briellat,  a  London  pump-maker,  in  a 
private  conversation  said,  "  A  reformation  cannot  be  effected  without 
a  revolution ;  we  have  no  occasion  for  kings ;  there  never  will  be  any 
good  time  until  all  kings  are  abolished  from  the  face  of  the  earth  ; 
it  is  my  wish  that  there  were  no  kings  at  all."  "  I  wish  the  French 
would  land  500,000  men  to  fight  the  government  party."  He  was 
tried,  found  guilty,  and  sentenced  to  a  fine  of  XlOO,  and  sent  to  jail 
for  a  year.^ 

(7.)  Richard  Phillips,  afterwards  Sheriff  of  London,  was  sent  to  jail 
for  eighteen  months  for  selling  Paine's  Rights  of  Man ;  for  the  same 
offence  two  other  booksellers  were  fined  and  sent  to  Newgate /o/*/o?/r 
years  I  A  surgeon  and  a  physician  were  sent  to  Newgate  for  two 
years  for  having  '■'■  seditious  libels  in  their  possession^  Thirteen  per- 
sons were  indicted  at  once.* 

(8.)  In  1793  a  charge  was  brought  against  the  Rev.  Thomas  Fyshe 
Palmer,  formerly  a  Senior  Fellow  of  Queen's  College,  Cambridge, 
and  then  a  Unitarian  minister  at  Dundee.  ]Mr.  Palmer  wrote  an 
Address  which  was  adopted  at  a  meeting  of  the  Friends  of  Liberty 
and  published  by  them,  which,  in  moderate  language,  called  on  the 
People  "  to  join  us  in  our  exertions  for  the  preservation  of  our  perish- 
ing liberty,  and  the  recovery  of  our  long  lost  rights."     He  distributed 

1  22  St.  Tr.  4  71.  =  Ibid.  823.  ^  lb.  903. 

*  Ibid.  471.     Wade,  Brit.  Hist.  (1847),  582,  et  scq. 


104  TRIAL   BY   JURY. 

copies  of  this  address.  He  was  prosecuted  for  "  Leasing-making,"  for 
publishing  a  "  seditious  and  inflammatory  writing."  The  (Scotch)  jury 
found  him  guilty,  and  the  judges  sentenced  him  to  transportation  for 
seven  years.     The  sentence  was  executed  with  rigorous  harshness.^ 

(9.)  The  same  year  Thomas  Muir,  Esq.,  was  brought  to  trial  for 
Leasing-making  or  public  Libel  at  Edinburgh.  He  was  a  promising 
young  lawyer,  with  liberal  tendencies  in  politics,  desiring  the  educa- 
tion of  the  great  mass  of  the  people  and  a  reform  in  Parliament. 
He  was  a  member  of  various  Reform  societies,  and  sometimes  spoke 
at  their  meetings  in  a  moderate  tone  recommending  only  legal  efforts 

—  by  discussion  and  petition  —  to  remedy  the  public  grievances. 
His  Honor  (Mr.  Curtis)  who  belongs  to  a  family  so  notoriously 
"democratic"  in  the  beginning  of  this  century,  and  so  eager  in  its 
denunciations  of  the  Federalists  of  that  period,  knows  that  the  law 
even  of  England  —  which  they  so  much  hated  —  allows  all  that.  It 
appeared  that  Mr.  IMuir  also  lent  a  copy  of  Thomas  Paine's  "  Rights 
of  Man  "  to  a  mechanic  who  asked  the  loan  as  a  favor.  For  these 
offences  he  was  indicted  for  sedition,  charged  with  instituting  "  a  Soci- 
ety for  Reform,"  and  with  an  endeavor  "to  represent  the  government 
of  this  country  as  oppressive  and  tyrannical,  and  the  legislative  body 
as  venal  and  corrupt."  It  was  alleged  in  the  indictment  that  he  com- 
plained of  the  government  of  England  as  "  costly,"  the  monarchy  as 
"useless,  cumbersome,  and  expensive,"  that  he  advised  persons  to 
read  Paine's  Rights  of  INIan,  and  circulated  copies  of  a  periodical 
called  "  the  Patriot,''^  which  complained  of  the  grievances  of  the  peo- 
ple. On  trial  he  was  treated  with  great  insolence  and  harshness,  rep- 
rimanded, interrupted,  and  insulted  by  the  agents  of  the  government 

—  the  court.  An  association  of  men  had  offered  a  reward  of  five 
guineas  for  the  discovery  of  any  person  who  circulated  the  writings 
of  Thomas  Paine.  Five  of  the  fifteen  jurors  were  members  of  that 
association,  —  and  in  Scotland  a  bare  majority  of  the  jurors  convicts. 
Mr.  Muir  defended  himself,  and  that  ably.  Lord  Justice  Clark 
charged  his  packed  jury  :  — 

"  There  arc  two  tilings  which  you  should  attend  to,  which  require  no  proof.  The 
first  is  that  tlie  British  Constitution  is  the  lest  in  the  ivorUl ! "  ."Is  not  every  man 
secure  in  /lis  life,  liberty,  and  property?  Is  not  happiness  in  the  poiver  of  every  vian? 
'  Does  not  every  man  sit  safely  under  his  own  vine  and  fig-tree '  and  none  shall  make 
bim  afraid  ?  "  "  The  other  circumstance  ...  is  the  state  of  the  countrj'^  during  last 
winter,  ^'here  iras  a  spirit  of  sedition  and  revolt  going  abroad."  "  I  leave  it  for  you  to 
judge  whether  it  was  perfectly  innocent  or  not  in  Mr.  Muir  ...  to  go  about  .  .  . 
amon"  the  lower  classes  of  the  peojde  .  .  .  indncing  tJiem  to  believe  that  a  reform  was 
absolutely  necessary,  to  preserve  tlieir  safely  and  their  liberty,  which,  had  it  not  been  for 

1  23  St.  Tr.  2.37;  Bclsliura's  History  of  George  III. 


REIGN  OF  TERROR  IN  ENGLAND.  105 

him,  they  never  would  have  suspected  to  have  been  in  danger."  "  He  ran  a  parallel 
between  the  Fi-ench  and  English  Constitutions,  and  talked  of  their  respective  taxes  .  .  . 
and  gave  a  preference  to  the  French."  "  lie  has  brouglit  many  witnesses  to  prove  his 
general  good  behavior,  and  his  recommending  peaceable  measures,  anil  petitioning  to 
Parliament."  "  Mr.  Muir  might  have  known  that  no  attention  could  be  paid  to  such  a 
rabble,  tchat  riyht  had  they  to  representation?  lie  could  have  told  them  the  Parliament 
would  never  listen  to  their  petition!  How  could  they  think  of  it?  A  government  in 
any  country  should  be  just  like  a  corporation  ;  and  in  this  country  it  is  made  up  of  the 
landed  interest,  tchich  alone  has  a  ri/jht  to  be  represented." 

Gentlemen,  you  might  tliink  this  speech  was  made  by  the  "  Castle 
Garden  Ck)mmittee,"  or  at  the  Boston  "  Union  Meeting  "  in  1850,  but 
it  comes  from  the  year  1793. 

Of  course  the  jury  found  him  guilty:  the  judges  sentenced  him  to 
transportation  for  fourteen  years  !  Lord  Swinton  quoted  from  the 
Roman  law,  that  the  punishment  for  sedition  was  crucifixion,  or  ex- 
posure to  be  torn  to  pieces  by  ivild  beasts,  or  transportation.  "  We 
have  chosen  the  mildest  of  these  punishments.^^  This  sentence  was 
executed  with  great  cruelty.  But  Mr.  Pitt,  then  in  the  high  places 
of  power,  declared  these  punishments  were  dictated  by  a  "  sound 
discretion."  ^ 

For  like  offences  several  others  underwent  the  same  or  similar 
punishment.  But  these  enormities  were  perpetrated  by  the  govern- 
ment in  Scotland  —  where  the  Roman  Law  had  early  been  intro- 
duced and  had  accustomed  the  Semi-Saxons  to  forms  of  injus- 
tice foreign  to  the  ethnologic  instinct  and  historic  customs  of  the 
parent  tribe.  But  begun  is  half  done.  Emboldened  by  their  success 
in  punishing  the  friends  of  Humanity  in  Scotland,  the  ministry  pro- 
ceeded to  attempt  the  same  thing  in  England  itself.  Then  began 
that  British  Reign  of  Terror,  which  lasted  longer  than  the  French, 
and  brought  the  liberties  of  the  People  into  such  peril  as  they  had 
not  known  since  William  of  Orange  hurled  the  last  of  the  Stuarts 
from  his  throne.  Dreadful  laws  were  passed,  atrocious  almost  as 
our  own  fugitive  slave  bill.  First  came  "  the  Traitorous  correspond- 
ence Bill;"  next  the  "  Habeas  Corpus  Suspension  Act;"  and  then 
the  "  Seditious  Practices  Act,"  with  the  "  Treasonable  Attempts  Bill " 
by  legislative  exposition  establishing  constructive  treason  I  All  these 
iniquitous  measures  were  brought  forward  in  Parliament  by  Sir  John 
Scott  —  then  Attorney-General,  one  of  those  North  Britons  who  find 
the  pleasantest  prospect  in  Scotland  is  the  road  to  London.  He  also 
was  vehemently  active  in  defending  the  tyranny  of  the  Scotch  judges 
just  referred  to,  as  indeed  all  judicial  insolence  and  legal  wrong.^  He 
opposed  all  attempts  to  reform  the  law  which  punished  with  death  a 

1  23  St.  Tr.  117;  30  Pari.  Hist.  1486,  for  Adams'  Speech  in  Commons. 

*  30  Pari.  Hist.  581  ;  31  Pari.  Hist.  520,  920,  1153,  et  al.;  32  Park  Hist.  370. 


106  TRIAL   BY   JURY. 

theft  of  five  shillings.  In  two  years  there  were  more  prosecutions  for 
seditious  libel  than  in  twenty  before.  But  Scott  had  his  reward,  and 
was  made  Lord  Chancellor  in  1801,  and  elevated  to  the  peerage  as 
Lord  Eldon.i 

8,  Then  came  that  series  of  trials  for  high  treason  which  disgraced 
the  British  nation  and  glutted  the  sanguinary  vengeance  of  the  court. 
The  government  suborned  spies  to  feign  themselves  "  radicals,"  join 
the  various  Reform  Societies,  worm  themselves  into  the  confidence  of 
patriotic  and  philanthropic  or  rash  men,  possess  themselves  of  their 
secrets,  catch  at  their  words,  and  then  repeat  in  court  v/hat  they  were 
paid  for  fabricating  in  their  secret  haunts.  A  ridiculous  fable  was  got 
up  that  there  was  a  plot  to  assassinate  the  King  !  Many  were  arrested, 
charged  with  treason  —  "constructive  treason."  On  the  evidence  of 
spies  of  the  government,  hired  informers  —  such  men.  Gentlemen  of 
Jury,  as  Commissioner  Loring  and  Marshal  Freeman  jointly  made 
use  of  last  year  to  kidnap  Mr.  Burns  —  estimable  men  w^ere  seized  and 
locked  up  in  the  most  loathsome  dungeons  of  the  kingdom,  with  in- 
tentional malignity  confined  amongst  the  vilest  of  notorious  criminals. 
The  judges  wrested  the  law,  constructing  libels,  seditions,  "  misde- 
meanors," treasons  —  any  crime  which  it  served  their  purpose  to  forge 
out  of  acts  innocent,  or  only  rash  or  indiscreet.  Juries  were  packed 
by  bribed  sheriflfs,  and  purchased  spies  were  brought  in  evidence  to 
swear  away  the  liberty  or  the  life  of  noble  men.  One  of  the  govern- 
ment witnesses  was  subsequently  convicted  of  ten  perjuries !  No 
man  was  safe  who  dared  utter  a  serious  word  against  George  III.  or 
I\Ir.  Pitt. 

Here,  Gentlemen,  I  shall  mention  two  cases  of  great  importance 
in  which  the  jury  did  their  duty  and  turned  the  stream  of  ministerial 
and  judicial  tyranny. 

(1.)  In  1794  in  a  bill  suspending  the  Habeas  Corpus,  Parliament 
declared  "  that  a  treacherous  and  detestable  conspiracy  had  been 
formed  for  subverting  the  existing  laws  and  constitution,  and  for 
introducing  the  system  of  anarchy  and  violence  which  had  lately  pre- 
vailed in  France."  Soon  after  the  grand-jury  for  Middlesex  indicted 
twelve  men  for  high  treason;  they  were  members  of  some  of  the 
Societies  mentioned  just  now.  "  The  overt  act  charged  against  them 
was,  that  they  had  engaged. i/z  a  compiracy  to  call  a  convention,  the 
object  of  which  was  to  bring  about  a  revolution  in  the  country,"  but 
it  was  not  alleged  that  there  was  any  plot  against  the  King's  life,  or 
any  [)r('paratioii  for  force.^  Thomas  Hardy,  a  shoemaker,  was  first 
brought  to  Irial.       'J'hc  trial  began  October  28,  1794,  just  sixty  years 


'  7  Caiii]>l((H,  11  D  ;  1  Townscnd's  Judges ;  Life  of  A'ic.  Gibbs. 
*  C  Campbell,  SCO. 


REIGN  OF  TERROR  IN  ENGLAND.  107 

before  Mr.  Curtis's  grand-jury  found  a  bill  against  me.  Sir  Joini 
Scott,  the  attorncy-genoral,  in  opening  the  Proscicution,  made  a  spcctli 
7ilne  liours'  lot/<i;  attempting  to  construct  treason  out  of  belonging  to 
a  society.  xVll  who  belonged  to  it  were  to  be  considered  guilty  of 
'•compassing  the  death  of  our  Lord  the  King."  Chief  Justice  Eyre, 
in  addressing  the  grand-jury,  referred  to  the  act  of  Parliament  as 
proof  of  a  conspiracy}  Mr.  Erskine  defended  Hardy  in  a  speech 
which  "  will  live  forever."  Seldom  had  English  Liberty  been  in  such 
peril ;  never  did  English  lawyers  more  manfully  defend  it.  The 
jury,  a  London  jury,  returned  "  Not  Guilty."  ^  Gentlemen,  the  report 
of  the  trial  occupies  more  than  twelve  hundred  pages  in  this  volume,''^ 
and  it  shook  the  nation.  The  British  juries  for  a  long  time  had 
slept  on  their  post,  and  allowed  Ihe  enemy  to  enter  the  camp  and 
murder  its  inmates.  But  the  trial  of  Hardy  woke  up  those  heedless 
sentinels,  and  Liberty  was  safe  —  in  England,  I  mean. 

(2.)  Still  the  infatuated  government  went  on,  not  conscious  of 
the  spirit  of  Anglo-Saxon  liberty  it  had  at  last  roused  from  long,  heavy 
and  deathlike  sleep,  and  eleven  days  after  brought  Mr.  John  Home 
Tooke  to  trial.  You  remember,  Gentlemen,  that  on  the  first  anniver- 
sary of  the  Declaration  of  Independence,  he  was  tried  for  publishing 
a  notice  of  a  meeting  which  raised  XlOO  for  the  widows  and  orphan 
children  of  our  citizens  who  fell  at  Lexington  on  the  19th  of  April, 
1775,  and  for  that  ofience  was  punished  with  fine  and  imprisonment.'^ 
After  the  acquittal  of  Hardy,  the  government  brought  Mr.  Tooke  to 
trial,  relying  on  the  same  evidence  to  convict  him  which  had  so  sig- 
nally failed  a  fortnight  before.  The  overt  act  relied  on  to  convict 
him  of  "levying  war"  and  "compassing  the  death  of  our  Lord  the 
King,"  was  membership  of  a  Reform  society !  Mr.  Erskine  defended 
him :  "  I  icill  assert  the  fi-eedom  of  an  Englishman ;  I  will  maintain 
the  dignity  of  man,  I  will  vindicate  and  glory  in  the  principles  which 
raised  this  country  to  her  preeminence  among  the  nations  of  the 
earth ;  and  as  she  shone  the  bright  star  of  the  morning  to  shed  the 
light  of  liberty  upon  nations  which  now  enjoy  it,  so  may  she  continue 
in  her  radiant  sphere  to  revive  the  ancient  privileges  of  the  world 
which  have  been  lost,  and  still  to  bring  them  forward  to  tongues  and 
people  who  have  never  known  them  yet,  in  the  mysterious  progression 
of  things."  ^ 

Gentlemen,  Home  Tooke  was  acquitted  —  the  government  routed 
and  overwhelmed  with  disgrace,  gave  up  the  other  prosecutions,  and 
the  treason  trials  ended.     Even  George  HI.  had  wit  enough  left  to 

^  34  George  III.  c.  54. 

2  24  St.  Tr.  199;  Annual  Register,  1794,  p.  274;  31  Pari.  Hist.  10G2,  et  al. 

=  24  St.  Tr.  *  See  above,  p.  33.  ^  25  St.  Tr.  1. 


108  TRIAL   BY  JURY. 

seethe  blunder  which  his  ministers  —  the  Slave  Power  of  England 
in  1794  —  had  committed,  and  stammered  forth,  "You  have  got  us 
into  the  wrong  box  my  Lord  [Loughborough]  ;  you  have  got  us  into 
the  wrong  box.  Constructive  treason  won't  do  my  Lord ;  construc- 
tive treason  won't  do."  By  and  by,  Gentlemen,  other  men,  wiser 
than  poor  feeble-minded  George  III.,  will  find  out  that  "  constructive 
misdemeanors  won't  do." 

Of  these  trials,  Mr.  Campbell,  himself  a  Judge,  declares,  "  This 
[the  conduct  of  the  government]  was  more  exceptionable  in  principle 
than  anv  thing  done  during  the  reign  of  Charles  II.;  for  then  the 
fabricators  of  the  Popish  Plot  did  not  think  of  corroborating  the  testi- 
mony of  Gates  and  Bedloe  by  a  public  statute ;  and  then,  if  the  facts 
alleged  had  been  true,  they  would  have  amounted  to  a  plain  case  of 
actual  treason ;  whereas  here,  admitting  the  truth  of  all  the  facts 
alleged,  there  was  no  pretence  for  saying  that  any  treason  contem- 
plated by  the  legislature  had  been  committed.  If  this  scheme  had 
succeeded,  not  only  would  there  have  been  a  sacrifice  of  life  contrary  to 
law,  but  all  political  'agitation  '  must  have  been  extinguished  in  Eng- 
land, as  there  would  have  been  a  precedent  for  holding  that  the  eflort 
to  carry  a  measure  by  influencing  public  opinion  through  the  means 
openly  resorted  to  in  our  days,  is  a  '  compassing  the  death  of  the 
sovereign.'  The  only  chance  of  escaping  such  servitude  would  have 
been   civil  war.     It  is  frightful  to  think  of  the  perils  to  which  the 

nation  was  exposed But  Erskine  and  the  crisis  were  framed 

for  each  other Plis   contemporaries,  who  without  him   might 

have  seen  the  extinction  of  freedom  among  us,  saw  it,  by  his 
peculiar  genius,  placed  on  an  imperishable  basis."  ^  But  Erskine 
without  a  Jury,  Gentlemen,  what  could  he  have  done  ?  He  could 
only  wail,  O  Jerusalem,  Jerusalem  —  when  she  would  not! 

Now,  Gentlemen,  let  us  come  over  to  this  side  of  the  water.  I 
shall  mention  some  cases  in  which  the  Jury  have  manfully  done  their 
duty,  some  others  in  which  they  have  allowed  themselves  to  be  brow- 
beaten and  bullied  by  a  judge,  and  so  have  done  the  greatest  wrong. 

1.  First  look  at/  the  famous  case  of  John  Peter  Zenger.^  Here  are 
the  facts.  In  1733,  Mr.  Zenger  established  a  newspaper  in  New  York 
—  there  was  only  one  there  before  —  called  the  "  New  York  Weekly 
Journal,"  "  containing  the  freshest  Advices  foreign  and  domestic." 
In  some  numbers  of  this  he  complained,  modestly  enough,  of  various 
grievances  in  the  administration  of  the  Province,  then  ruled  by 
Governor  ('(jsby.  He  said,  "  as  matters  now  stand  their  [the  Peo- 
ple's]   liberties   and    properties   are  precarious,    and    that   Slavery  is 

'  :,  Cain].l)i;ll,  307.  "  3  J)oc.  Hist.  N.Y.  p.  3-10,  341. 


MR.   ZENGER   IN    1735.  109 

likely  to  be  entailed  on  them  and  their  posterity,  if  some  past  things 
be  not  amended."  He  published  the  remarks  of  some  one  who  said 
he  "  should  be  glad  to  hear  that  the  Assembly  would  exert  them- 
selves, as  became  them,  by  showing  that  they  have  the  interest  of 
their  country  more  at  heart  than  the  gratification  of  any  private  view 
of  any  of  their  members,  or  being  at  all  affected  by  the  smiles  or 
frowns  of  a  Governor,  both  which  ought  equally  to  be  despised  when 
the  interest  of  the  country  is  at  stake."  "  We  see  men's  deeds  de- 
stroyed, judges  arbitrarily  displaced,  new  courts  erected  without  con- 
sent of  the  legislature,  by  which,  it  seems  to  me,  trials  by  juries  are 
taken  away  when  a  Governor  pleases."  "  Who,  then,  in  that  pro- 
vince can  call  any  thing  his  own,  or  enjoy  any  liberty  longer  than 
those  in  the  administration  will  condescend  to  let  him  do  it  ?  " 

In  October,  1734,  Chief  Justice  de  Lancey  gave  a  charge  to  the 
Grand-.Jury,  urging  them  to  indict  Mr.  Zenger  for  a  libel.  He  says, 
"  It  is  a  very  high  aggravation  of  a  libel  that  it  tends  to  scandalize 
the  government  by  reflecting'  on  those  icho  are  intrusted  with  the  ad- 
ministration of  public  affairs,  which  .  .  .  has  a  direct  tendency  to 
breed  in  the  public  a  dislike  of  their  Governors."  "  If  he  who  hath 
either  read  a  libel  himself,  or  hath  heard  it  read  by  another,  do  after- 
wards maliciously  read  or  report  any  part  of  it  in  the  presence  of 
others,  or  lend  or  shoiu  it  to  another,  he  is  guilty  of  an  unlaivful  publica- 
tion of  itJ^ 

But  the  Judge  had  not  packed  the  Grand-Jury  with  sufficient  care, 
and  so  no  bill  was  found.  Thereupon  the  Governor's  Council  sent  a 
message  to  the  General  Assembly  of  New  York,  complaining  of  JMr. 
Zenger's  Journal  as  tending  "  to  alienate  the  affections  of  the  people 
of  this  province  from  his  majesty's  government,"  and  asking  them  to 
inquire  into  the  said  papers  and  the  authors  thereof;  the  Council 
required  that  the  obnoxious  numbers  might  "  be  burned  by  the  hands 
of  the  common  hangman  or  whipper,  near  thepilloryP  The  Assembly  bt 
them  lie  on  the  table.  The  Court  of  Quarter-sessions  was  applied  to 
to  burn  the  papers;  but  as  that  body  refused,  the  sheriff  "  delivered 
them  unto  the  hands  of  his  own  negro,  and  ordered  him  to  put  them 
into  the  fire,  which  he  did." 

Mr.  Zenger  was  imprisoned  by  a  warrant  from  the  Governor,  a 
lettre  de  cachet,  and  "  for  several  days  denied  the  use  of  pen,  ink,  and 
paper,  and  the  liberty  of  speech  with  any  person."  An  ex  officio 
information  was  brought  against  him,  charging  him  with  "  malicious 
and  seditious  libel."  His  counsel,  Messrs.  Alexander  and  Smith, 
took  exceptions  to  the  proceedings.  The  Chief  Justice  would  neither 
hear  nor  allow  the  exceptions,  "for"  said  he,  "you  thought  to  have 
gained  a  great  deal  of  applause  and  popularity  by  opposing  this 
court  ....  but  you  have  brought  it  to  that  point,  that  either  we 

10 


110  TRIAL   BY   JURY. 

must  go  from  the  bench  or  you  from  the  bar,  therefore  we  exclude 
you.  So  "  for  contempt  of  court"  their  names  were  struck  from  the 
list  of  attorneys.  The  case  came  on  for  trial.  The  clerk  of  the 
Court  sought  to  pack  his  jury,  and  instead  of  producing  the  "  Free- 
holders' book  "  to  select  the  Jury  from,  presented  a  list  of  forty-eight 
persons  which  he  said  he  had  taken  from  that  book.  This  Honorable 
Court  knows  how  easy  it  is  to  violate  the  law  in  summoning  jurors; 
none  knew  it  better  a  hundred  and  twenty  years  ago.  Of  the  48 
some  were  not  freeholders  at  all ;  others  held  commissions  and 
offices  at  the  Governor's  pleasure  ;  others  were  of  the  late  displaced 
magistrates  who  had  a  grudge  against  Mr.  Zenger  for  exposing  their 
official  conduct ;  besides,  there  were  the  governor's  baker,  tailor,  shoe- 
maker, candle-maker,  and  joiner.  But  it  does  not  appear  that  this 
Judge  had  any  Brother-in-law  on  the  list;  corruption  had  not  yet 
reached  that  height.  But  that  wicked  list  was  set  aside  after  much 
ado,  and  a  Jury  summoned  in  the  legal  manner.  It  may  astonish  the 
Court  but  it  was  really  done  —  and  a  Jury  summoned  according  to 
law.  The  trial  went  on.  Andrew  Hamilton  of  Philadelphia  de- 
fended Mr.  Zenger  with  law,  wit,  learning,  and  eloquence.  He 
admitted  the  fact  of  printing  and  publishing  the  documents,  and 
rested  the  defence  on  the  truth  of  their  assertions.  The  Attorney- 
General,  Mr.  Bradley,  said,  "  supposing  they  were  true,  the  law  says 
that  they  are  not  the  less  libellous  for  that :  nay,  indeed,  the  law  says, 
their  being-  true  is  an  aggravation  of  the  crime."  He  "  did  not  know 
what  could  be  said  in  defence  of  a  man  that  had  so  notoriously 
scandalized  the  governor  and  principal  magistrates  ....  by  charg- 
ing them  tcith  depriving  the  people  of  their  rights  and  liberties^  and 
taking  away  trials  by  juries,  and  in  short  putting  an  end  to  the  laiv 
itself.  If  this  was  not  a  libel,  he  did  not  know  what  was  one.  Such 
persons  as  did  take  these  liberties  ....  ought  to  suffer  for  stirring 
up  sedition  and  discontent  among  the  people." 

The  Chief  Justice  declared,  "  It  is  far  from  being  a  justification  of 
a  libel  that  the  contents  thereof  are  true  ....  since  the  greater 
appearance  there  is  of  truth,  so  much  the  more  provoking-  is  it ! " 
"  The  jury  may  find  that  Mr.  Zenger  printed  and  published  these 
papers,  and  leave  it  to  the  court  to  judge  ivhether  they  are  libellous  I " 

That  would  be  to  put  the  dove's  neck  in  the  mouth  of  the  fox,  and 
allow  liim  to  decide  whether  he  would  bite  it  off.  Mr.  Hamilton  re- 
plied :  — 

"  This  of  leaving  it  to  the  judgment  of  tlie  court  wlictlier  tlie  words  arc  libellous  or 
not,  in  cfTect  renders  Juries  useless  (to  say  no  worse),  in  many  cases."  "  If  the  faults, 
mistakes,  nay  even  the  vices  of  such  a  person  be  private  and  personal,  and  don't  aifect 
the  [)eace  of  the  public,  or  tlie  liberty  or  i)roperly  of  our  neighbor,  it  is  unmanly 
and  unmannerly  to  expose  them,  either  by  word  or  writing.     But,  when  a  ruler  of  the 


MR.   ZENGER   IN    1735.  Ill 

people  brings  his  personal  failings,  but  much  more  his  vices,  into  his  administration,  and 
the  people  find  themselves  afi'eeted  by  them,  either  in  their  liberties  or  properties,  that 
■will  alter  the  case  mightilj' ;  and  all  the  high  things  that  are  said  in  favor  of  rulers  and 
of  deputies,  and  upon  the  side  of  power,  will  not  be  able  to  stop  people's  mouths  when 
they  feel  themselves  oppressed,  I  mean  in  a  free  government.  It  is  true  /;/  times  pai^t 
it  iva.'i  a  crime  to  apeak  truth  ;  and  in  that  terrible  court  of  Star-Chamber  many  worthy 
and  brave  men  suifered  for  so  doing ;  and  yet  even  in  that  court,  and  in  those  bad 
times,  a  great  and  good  man  durst  say,  what  I  hope  will  not  be  taken  amiss  of  mi;  to 
say  in  this  place,  namely,  '  The  practice  of  informations  for  libels  is  a  sword  in  the 
hands  of  a  wicked  king,  and  an  arrant  coward,  to  cut  down  and  destroy  the  innocent; 
the  one  cannot  because  of  his  high  station,  and  the  other  dares  not,  because  of  his  want 
of  courage,  redress  himself  in  another  manner.' 

"It  IS  a  right  which  all  persons  claim  and  are  entitled  to,  to  complain  when  they  are 
hurt ;  they  have  a  right  publicly  to  remonstrate  against  the  abuses  of.  j)Ower,  in  the 
strongest  terms ;  to  put  their  neighbors  upon  their  guard  against  the  craft  or  open  vio- 
lence of  men  in  authority;  and  to  assert  with  courage  the  sense  they  have  of  the  bless- 
ings of  liberty,  the  value  they  put  upon  it,  and  their  resolution  at  all  hazards  to  pre- 
serve it  as  one  of  the  greatest  blessings  Heaven  can  bestow."  "  It  is  a  duty  which 
all  good  men  owe  to  their  country,  to  guai'd  against  the  unhappy  influence  of  ill  men 
when  intrusted  with  power,  and  especially  against  their  creatures  and  dependants, 
who  as  they  are  generally  more  necessitous,  are  surely  more  covetous  and  cruel." 

According  to  the  Judge  the  Jury  had  only  one  question  before  them, 
"  Did  Zenger  publish  the  words  charged  in  the  information  ?  "  That 
fact  was  clear  ;  nay,  he  did  not  himself  deny  it.  He  confessed  it  in 
court.  But  the  jury  fell  back  on  their  rights  and  duties  to  decide  the 
Question  of  Fact,  of  Law,  and  of  the  Application  of  the  Law  to 
the  Fact,  and  returned  "  Not  Guilty,"  "  upon  which  there  were  three 
huzzas  in  the  Hall."  Had  this  Honorable  Court  been  then  in  exist- 
ence I  suppose  it  would  have  talked  of  indicting  the  jurors  for  "  per- 
jury," and  would  doubtless  have  had  its  labor  for  its  pains.  For  the 
Common  Council  of  New  York  presented  Mi\  Hamilton  with  a 
costly  gold  box  and  the  freedom  of  the  city.  Gentlemen,  this  took 
place  one  hundred  and  twenty  years  ago.  Forty  years  before  the 
Revolution,  Andrew  Hamilton  helped  lay  the  "  brilliant  foundation  of 
liberty,"  whereon  another  Hamilton  was  also  to  raise  up  noble  walls  of 
freedom.  Gentlemen  of  the  Jury,  by  Wisdom  is  a  house  builded, 
but  the  foolish  plucketh  it  down  with  her  own  hands.  Will  you 
allow  that  to  be  done  ?  What  if  the  jury  in  1735  had  been  faithless  ? 
The  axe  which  smote  down  Zenger  in  New  York,  bloody  and  cruel, 
would  have  shorn  off  the  heads  of  Otis  and  Quincy,  and  Adams 
and  Hancock  at  Boston  ;  the  family  of  Scroggs  alone  would  be  held 
in  honor  in  New  England.^ 

Gentlemen,  it  once  happened  in  New  York  that  Governor  Nichol- 
son was  offended  with  one  of  the  clergymen  of  the  Province.     He 

1  17  St.  Tr.  G75. 


112  TRIAL   BY   JURY. 

met  him  on  the  road  one  day,  and  "as  it  was  usual  with  him  (under 
the  protection  of  his  commission)  used  the  poor  minister  with  the 
worst  of  language,  threatened  to  cut  off  his  ears,  slit  his  nose,  and  at 
last  to  shoot  him  through  the  head."  The  minister,  "  being  a  reverend 
man,  continued  all  this  time  uncovered  in  the  heat  of  the  sun,  until 
he  found  an  opportunity  to  fly  for  it,  and  coming  to  a  neighbor's 
house  fell  ill  of  a  fever  and  wrote  for  a  doctor,"  relating  the  facts  and 
concluding  that  the  governor  was  crazy,  for  no  man  in  his  right  mind 
would  behave  so  ill.  The  doctor  showed  the  letter ;  the  governor 
brought  a  prosecution  against  the  minister  for  publishing  a  "scandal- 
ous, wicked,  and  seditious  libel."  No  doubt  he  could  have  found  a 
judge  even  then  who  would  twist  the  law  so  as  to  make  the  letter 
"sedition"  and  "libel;"  nay,  perhaps  he  could  construct  a  jury  so  as 
to  secure  a  conviction,  but  before  it  reached  trial  the  prosecution  was 
stopped  by  the  order  of  Queen  Anne. 

2.  In  1816,  in  Massachusetts,  there  occurred  the  celebrated  case 
of  Commonwealth  vs.  Bowen,  to  which  I  shall  again  refer  in  a  subse- 
quent part  of  this  defence.  These  are  the  facts.  In  September,  1815, 
Jonathan  Jewett  was  convicted  of  murder  in  Hampshire  county,  Mas- 
sachusetts, and  sentenced  to  be  hanged  on  the  9th  of  the  following 
November.  He  was  confined  at  Northampton,  and  hung  himself  in 
his  cell  on  the  night  preceding  the  morning  appointed  for  his  public 
execution.  George  Bowen  was  confined  in  the  same  jail,  in  an  apart- 
ment adjacent  to  Jewett's,  and  in  such  a  situation  that  they  could 
freely  converse  together.  Bowen  repeatedly  and  frequently  advised 
and  urged  Jewett  to  destroy  himself  and  thus  disappoint  the  sheriff 
and  the  expectant  people.  He  did  so,  and  the  coroner's  jury  returned 
that  he  committed  suicide.  But  nevertheless,  Bowen  was  indicted 
for  the  wilful  murder  of  Jewett.  It  was  charged  that  he  "  feloniously, 
wilfully,  and  of  his  malice  aforethought,  did  counsel,  hire,  persuade, 
and  procure  the  said  Jewett  the  said  felony  and  murder  of  himself  to 
do  and  commit ; "  or  that  he  himself  murdered  the  said  Jewett  by 
hanging  him. 

At  the  trial  Attorney- General  Perez  Morton  contended  that  Bowen 
^^  was  guilty  of  vwrder  as  principal  ;^^  and  he  cited  and  relied  chiefly 
on  tlie  following  authority  from  the  Reports  of  our  old  friend  Kelyng. 

"  IVIenioraiKluni,  lliat  my  brother  Tir'mJcn  showed  me  a  report  wliich  lie  had  of  a 
charge  given  by  Justice  Jones  to  the  grand-jury,  at  the  King's  Bench  l)arre,  Michael- 
mas Term,  9  Car.  1,  in  which  he  said,  tliat  jioisoning  another  was  nun-der  at  common 
law.  And  the  statute  of  1  Ed.  G,  was  but  declarator}'  of  the  couunon  law,  and  an 
afllrmation  of  it.  Tf  one  drinks  poison  liy  the  provocation  of  another,  and  dieth  of  it, 
this  is  murder  in  the  person  that  persuaded  it.  And  he  took  this  difierence.  If  A. 
give  poison  to  J.  S.  to  give  to  J.  ]).,  and  J.  S.  knowing  it  to  be  poison,  give  it  to  J.  D. 
Tvho  taketli  it  in  the  absence  of  J.  S.,  and  dieth  of  it ;  in  this  case  J.  S.,  who  gave  it  to 


•bowen's  case  in  1816.  113 

J.  D.,  is  principal ;  and  A.  Avho  gave  the  poison  to  J.  S.,  and  was  absent  when  it  was 
taken,  is  but  accessory  before  the  fact.  But  if  A.  buyeth  poison  for  .7.  S.,  and  J.  S.,  in 
the  absence  of  A.,  Uvketh  it  and  dieth  of  it,  in  this  case  A.,  though  he  be  absent,  yet  he 
is  principal.  So  it  is  if  A.  giveth  poison  to  B.  to  give  unto  C.  ;  and  B.,  not  knowing  it 
to  be  poison,  but  believing  it  to  be  a  good  medicine,  giveth  it  to  C,  who  dieth  of  it;  in 
this  case  A.,  who  is  absent,  is  principal,  or  else  a  man  should  be  murdered,  and  there 
should  be  no  principal.  For  B.,  who  knoweth  nothing  of  the  poison,  is  in  no  fault, 
though  he  gave  it  to  C.  So  if  A.  puts  a  sword  into  the  hands  of  a  madman,  and  bids 
him  kill  B.  with  it,  and  then  A.  goeth  away,  and  the  madman  kills  B.  with  the  sword, 
as  A.  commanded  him,  this  is  murder  in  A.,  though  absent,  and  he  Is  jirincipal;  fur  it 
is  no  crime  in  the  madman,  who  did  the  fact  by  reason  of  his  madness."' 

Mr.  Morton  also  laid  clown  this  as  law,  "  the  adviser  of  one  ivho 
commits  a  felony  of  himself  is  a  murderer^''  He  might  have  added, 
"the  adviser  of  one  who  breaks  into  his  own  house  is  a  burglar." 

Chief  Justice  Parker — who  once  declared  that  the  jury  had  noth- 
ing to  do  with  the  harshness  of  a  law  —  charged  the  jury  that  the 
important  question  for  them  was,  Did  Bowen's  advice  induce  Jewett 
to  kill  himself?  if  so,  they  were  to  find  him  guilty  of  wilful  murder! 
"  The  community  has  an  interest  in  the  jmhlic  execution  of  criminals 
[the  crowd  having  an  interest  in  the  spectacle']  and  to  take  such  an 
one  out  of  the  reach  of  the  law  [by  advising  him  to  self-destruction] 
is  no  trivial  offence."  "Yom  are  not  to  consider  the  atrocity  of  this 
offence  in  the  least  degree  diminished  by  the  consideration  that  justice 
was  thirsting-  for  its  sacrifice  ;  and  that  but  a  small  portion  of  Jewett's 
earthly  existence  could,  in  any  event,  remain  to  him."  ^ 

There  was  no  doubt  that  Bowen  advised  Jewett  to  commit  suicide; 
but  the  jury,  in  defiance  of  the  judge's  charge  and  Mr.  Kelyng's  law, 
nevertheless  returned  "  Not  Guilty." 

Here,  Gentlemen,  is  a  remarkable  instance  of  a  judge,  in  private  a 
benevolent  man,  perverting  his  official  power,  and  constructing 
the  crime  of  murder  out  of  advice  given  to  a  man  to  anticipate  a 
public  execution  by  privately  hanging  himself!  The  law  relied  on 
was  the  Memorandum  of  the  charge  to  a  grand-jury  made  by  a  judge 
who  notoriously  broke  the  fundamental  laws  of  England,  by  declar- 
ing that  the  king  had  a  constitutional  right  to  imprison,  at  will  and 
as  long  as  he  liked,  any  of  his  subjects  without  trial,  even  members 
of  Parliament  for  words  uttered  in  public  debate ;  and  also  the  right 
to  levy  ship-money  contrary  to  the  Acts  of  Parliament.  This  charge 
was  made  in  the  tyrannical  reign  of  Charles  I.  in  1634,  by  a  tyran- 
nical judge.  There  was  no  report,  only  a  memorandum  of  it,  and  that 
not  printed  till  seventy-four  years  after !     It  had  not  the  force  of  law 

^  See  the  case  in  Kelyng's  Reports  (London,  1708),  p.  52.     The  opinion  of  Justice 
Jones  was  only  the  charge  of  an  inferior  judge  given  to  the  grand-jury  in  lG3-i. 
-  13  Mass.  ilep.  356. 

10* 


114  •  TRIAL   BY   JURY. 

even  then  :  it  was  only  the  memorandum  of  the  "  opinion  "  of  a  single 
judge,  not  even  the  "  opinion  "  of  the  full  court.  The  memorandum 
is  contained  in  Kelyng's  Book,  which  Lord  Campbell  calls  "  a  folio 
volume  of  decisions  in  criminal  cases,  which  are  of  no  value  what- 
ever, except  to  make  us  laugh  at  some  of  the  silly  egotisms  with  which 
they  abound."  ^  On  such  authority  in  1816  would  even  a  INIassachu- 
setts  court,  with  a  judge  who  was  a  kindly  man  in  private,  dash  away 
the  life  of  a  fellow-creatui'e,  —  with  such  mockery  of  law  I  But, 
Gentlemen,  the  jury  at  that  time  did  not  slumber;  they  set  the  matter 
right,  and  did  justice  spite  of  Judge  Kelyng  and  his  "law."  They 
made  nothing  of  the  judge's  charge! 

Gentlemen  of  the  Jury,  I  will  now  mention  some  cases  of  gross 
injustice  perpetrated  by  the  Federal  Courts  of  the  United  States. 

The  tenth  article  of  amendments  to  the  Constitution  provides  that 
"  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  People."  The  Constitution  itself  confers  no  Common  Law 
Jurisdiction  on  the  Government.  Neither  the  People  nor  their  Repre- 
sentatives had  ever  decreed  the  Common  Law  of  England  to  be  a 
part  of  the  law  of  the  United  States.  Yet,  spite  of  the  absence  of 
positive  enactment  and  the  express  words  of  the  above  amendment 
to  the  Constitution,  the  Supreme  Court  at  once  assumed  this  juris- 
diction. In  1799,  Chief  Justice  Ellsworth  said,  "  the  Common 
Law  of  this  country  remains  the  same  as  it  was  before  the  Ptevo- 
lution  ;  "  -  and  proceeded  on  that  supposition  to  exercise  the  powers 
of  English  Judges  of  Common  Law,  undertaking  to  punish  men 
for  offences  which  no  Act  of  Congress  forbid.  You  see  at  once 
what  monstrous  tyranny  would  follow  from  that  usurpation.  Had 
the  English  Common  Law  power  of  punishing  for  "  seditious 
libel,"  for  example,  been  allowed  to  the  Federal  court,  Gentlemen, 
you  know  too  well  what  would  follow.  But  this  monstrous  assump- 
tion was  presently  brought  to  an  ignominious  end ;  and  strange  as  it 
may  appear,  by  one  of  the  judges  of  the  court  itself.  Samuel  Chase 
of  Maryland,  one  of  the  signers  of  the  Declaration  of  Independence, 
had  been  an  Anti-Federalist  and  a  strong  State-Right's  man,  as  such 
insisting  on  a  strict  construction  of  the  Constitution.  Singular  as  it 
may  appear  he  was  made  a  Judge  in  1796,  and  what  is  yet  more  sur- 
prising, in  1798,  declared  "the   United   States  as  a  Federal  govern- 


'  2  Campbell,  Jnd^res,  -lOG. 

*  Wharton,  Stat*;  Trials,  Go3.  See  loo  Virf^'inla  Kesolnlions  (Riclimond,  1850),  Pre- 
face, xiii.  et  seq. ;  Vir^'iiiia  Kcsoliitions  l)y  Madison,  and  his  lleport  thereon  ;  Kentucky 
Kesolutions  by  Jeilenson,  in  4  Eliot's  Debates  (183G). 


FRIES'S   TRIAL   FOR   TREASON.  115 

ment,  bad  no  Common  Law,"  and  thus  ended  this  claun.^  But  tyr- 
anny did  not  end ;  nay,  he  himself,  a  man  of  uncommon  powers  and 
legal  attainments,  became  a  most  atrocious  example  of  Judicial  des- 
potism. 

1.  In  1791  a  direct  tax  was  levied  by  Act  of  Congress  on  all  lands 
and  houses ;  excise  officers  were  to  ascertain  their  value.  The  "  Alien 
and  Sedition  Laws  "  were  also  passed  the  same  year.  The  execu- 
tion of  the  law  relative  to  the  direct  tax  was  resisted  in  Northampton 
county,  Penn.,  and  some  prisoners  rescued  from  an  officer  of  the 
United  States.  The  President,  Mr.  Adams,  issued  his  proclamation. 
In  1799  John  Fries  was  arrested  on  the  charge  of  treason.  The 
overt  act  alleged  was  resistance  to  that  one  special  law  of  Congress. 
Judge  Iredell  charged  the  Grand-Jury,  "  You  have  heard  the  govern- 
ment as  grossly  abused  as  if  it  had  been  guilty  of  the  vilest  tyranny." 
Had  he  read  the  private  correspondence  of  the  Cabinet,  he  might 
have  found  other  specimens  of  "  abuse."  He  defended  both  the  Alien 
and  Sedition  Laws. —  They  were  "constitutional"  and  "  proper." ^ 

Mr.  Fries  was  indicted  for  treason.  The  Judiciary  Act  of  Con- 
gress of  1789  provides  that  "in  cases  punishable  with  death  the 
trial  shall  be  had  in  the  county  where  the  offence  was  committed ;  or 
when  that  cannot  be  done  without  great  inconvenience,  twelve  petit 
jurors  at  least  shall  be  summoned  from  thence."  The  offence  was 
committed  in  Northampton  county,  and  he  was  indicted  and  brought 
to  trial  in  Philadelphia  county,  nor  could  the  court  be  induced  to 
comply  with  the  statute  I 

The  government  laid  down  the  law  and  constructed  treason  with 
the  usual  ingenuity  of  officials  working  by  the  job.  Judge  Kelyng's 
loose  opinion  that  an  attack  on  a  brothel  was  high  treason,  was  cited 
by  Mr.  Rawle,  the  District  Attorney,  as  good  law.-^  What  "  in  Eng- 
land is  called  constructive  levying  of  war,  in  this  country  must  be 
called  direct  levying  of  war."  Judge  Peters  charged  that  though 
force  was  necessary  to  constitute  the  crime  of  treason,  yet  "  the  quan- 
tum of  force  is  immaterial,"  of  course  it  may  be  wielding  a  wheat 
straw,  or  a  word,  I  suppose.  "  The  doctrine  of  constructive  treason 
has  produced  much  real  mischief  in  another  country"  [England]. 
"  The  g-realcr  part  of  the  objections  to  it  are  irrelevant  here.'" 

Fries  was  found  guilty.  His  counsel  moved  for  a  new  trial,  on  the 
ground  that  before  the  trial  one  of  the  jurors  had  declared,  "  Fries 
ought  to  be  hung ; "  "I  myself  shall  be  in  danger  unless  we  hang 


^  Wharton,  197  ;  3  Dallas,  384 ;  see  5  Hildreth,  230. 

-  See  a  defence  of  them  in  2  Gibbs's  Administration,  74,  78;  also  1G2. 

^  AVharton,  539  ;  Kclvng,  E,.  70,  75. 


116  TRIAL   BY  JURY. 

them  all ; "  that  the  jurors  were  irregularly  drawn,  and  the  trial  was 
not  held  in  the  county  where  the  offence  was  committed.  Judge 
Iredell  ruled  that  it  was  "  a  hv^h  contempt  at  this  time  to  call  for  a 
renewal  of  an  argument  whereon  a  solemn^  decisive  opinion  was  deliv- 
ered.^^ Judge  Peters  declared  the  juror  had  "  said  no  more  than  all 
friends  to  the  laws  and  the  government  were  warranted  in  thinking 
and  saying."     Yet  a  new  trial  was  granted. 

The  new  trial  was  held  before  Judge  Chase,  who  had,  as  Mr. 
Wharton  says,  a  "  singular  instinct  for  tumults  which  scents  it  at  a 
distance  .  .  .  and  irresistibly  impels  a  participation  in  it,"  "  moving 
perpetually  with  a  mob  at  his  heels."  Yet  "  apart  from  his  criminal 
jurisdiction  he  was  reckoned  a  wise  and  impartial  judge,  a  master  of 
the  Common  Law,  and  a  thorough  and  indefatigable  administrator 
of  public  functions."  "  It  was  this  despotic  ardor  of  temperament 
.  .  .  which  made  him,  when  a  young  man,  employ  -udth  resolute  au- 
dacity the  engine  of  popular  revolt,  and  which  led  him  when  older, 
and  when  in  possession  of  that  power  against  which  he  had  so  stead- 
ily warred,  to  wield  with  the  same  vigor  the  sword  of  constituted  au- 
thority." 1  Gentlemen,  he  was  like  many  that  this  Honorable  Court 
perhaps  have  known,  who  were  privateering  Democrats  in  1812,  and 
Kidnapping  AVhigs  in  1850.  To  him  we  are  indebted  for  the  invalu- 
able decision  that  the  United  States  courts  have  no  Common  Law 
jurisdiction. 

At  this  new  trial  he  treated  the  defendants'  counsel  in  such  a  man- 
ner that  they  abandoned  the  case,  and  left  the  Prisoner  without  de- 
fence. The  District  Attorney,  taking  his  law  from  Kelyng  and  simi- 
lar servants  of  British  despots,  laid  it  down  that  treason  "  may  consist 
in  assembling  together  in  numbers,  and  by  actual  force,  or  by  terror, 
opposing  any  particular  law ; "  "  Force  need  not  be  used  to  manifest 
this  spirit  of  rebellion."  "  Even  if  the  matter  made  a  grievance  of  was 
illegal,  the  demolition  of  it  in  this  way  icas,  nevertheless,  treason," 
"a  rising  with  intent  by  force  to  prevent  the  execution  of  a  law 
....  preventing  the  marshal  executing  his  warrants,  and  preventing 
the  other  officers  ....  amounted  to  levying  war."  "In  short  an 
opposition  to  the  acts  of  Congress  in  whole  or  in  part  [that  is  to  ani/ 
one  lavj'\  ....  either  by  collecting  numbers,  or  by  a  display  of  force 
....  which  should  operate  ....  either  throughout  the  United 
States,  or  in  any  part  thereof  to  procure  a  repeal  or  a  suspension  of  the 
law  ....  this  offence  he  considered  to  be  strictly  treason." 

Judges  Chase  laid  it  down  as  law  not  to  be  questioned  in  his  court, 
"  that  any  .  .  .  rising  of  any  body  of  the  people  .  .  .  to  attain  by  force 
.  .  .  any  object  of  a  great  public  nature  ...  is  a  levying  of  war : " 

'  4  IliMrctli,  .071  ;  1  Gibbs,  300;  2  Gibbs,  419. 


ALIEN   AND    SEDITION   LAWS.  117 

"any  such  .  .  .  rising  to  resist  .  .  .  the  execution  of  any  statutes  of 
United  States  ...  or  for  any  otlier  object  of  a  general  nature  or  na- 
tional concern,  under  any  pretence  as  that  the  statute  was  unjust  .  .  . 
or  unconstitutional  is  a  levying  war;  "  ^-anij  force  .  .  .  will  constitute 
the  crime  of  levying  war." 

If  that  be  law,  then  an  old  negro  woman  who,  witii  a  di-hcloth, 
frightens  officer  Butman  away  from  kidnapping  her  granddaughter  in 
Southae  street,  does  thereby  levy  war  against  the  United  States  and 
commits  the  crime  of  treason. 

The  jury,  overborne  by  the  assumptions  of  the  judge,  or  ignorant 
of  their  duties  and  their  rights,  allowed  this  tyrannical  court  to  have 
its  way,  surrendered  the  necks  of  the  people,  and  brought  in  a  verdict 
of  guilty.  .Judge  Chase  made  an  insolent  address  to  the  prisoner  and 
sentenced  him  to  death.  But  Mr.  Adams,  with  a  remarkable  degree 
of  justice,  gave  him  a  full  pardon,  and  drew  down  upon  himself  there- 
by the  wrath  of  his  cabinet.^ 

2.  In  17S8  jNIathew  Lyon,  a  native  of  Ireland,  a  Revolutionary 
soldier,  a  m'ember  of  congress,  and  editor  of  a  newspaper  in  Vermont, 
was  l)rought  to  trial  under  the  Sedition  Law,  for  a  false,  malicious, 
and  seditious  libel.  He  had  published  in  his  newspaper  a  somewhat 
severe  attack  on  the  Federalists  then  in  power.  The  article,  alleged 
to  be  "  seditious,"  was  a  letter  written  and  mailed  at  the  seat  of  gov- 
ernment seven  days  before,  and  published  nine  days  after,  the  passage 
of  the  Sedition  Law  itself.  It  was  as  much  a  political  trial,  Gentle- 
men, as  this  —  purely  political.  Judge  Patterson  —  United  States 
Circuit  Judge  of  Vermont  —  charged  that  the  jury  had  nothing  what- 
ever to  do  with  the  constitutionality  of  the  Sedition  Law.  "  Congress 
has  said  that  the  author  and  publisher  of  seditious  libels  is  to  be  pun- 
ished." "  The  only  question  you  are  to  determine  is  .  .  .  Did  Mr. 
Lyon  publish  the  writing  ?  .  .  .  Did  he  do  so  seditiously,  with  the 
intent  of  making  odious  or  contemptible  the  President  and  govern- 
ment, and  bringing  them  both  into  disrepute  ?  " 

Mr.  Lyon  was  found  guilty,  and  punished  by  a  fine  of  $1,000  and 
imprisonment  for  four  months.  The  "  Seditious  Libel "  would  now 
be  thought  a  quite  moderate  Editorial  or  "  Letter  from  our  Correspond- 
ent." His  imprisonment  was  enforced  with  such  rigor  that  his  con- 
stituents threatened  to  tear  down  the  jail,  which  he  prevented.'^ 

3.  In  1799  Thomas  Cooper,  a  native  of  England,  residing  at 
Northumberland,  Pennsylvania,  published  a  handbill  reflecting  severely 
on  the  conduct  of  President  Adams.     He  was  prosecuted  by  an  In- 

MVheaton,  458;  9  Adams's  Works,  57;  2  Gibbs,  3G0;  5  Ililclretli,  3G6  ;  Chase's 
Trial.  18. 

*  AVharton,  333;  4  Jefferson's  "Works  (1853),  262. 


118  TRIAL   BY   JURY. 

formation  ex  officio,  in  the  Circuit  Conrt  for  Pennsylvania,  and  brought 
to  trial  before  Judge  Chase,  already  referred  to,  charged  with  a  "false, 
scandalous,  and  malicious  attack"  on  the  President.  Mr.  Chase 
charged  the  jury,  "  A  Republican  government  can  only  be  destroyed 
in  two  ways :  the  introduction  of  luxury,  or  the  licentiousness  of  the 
press.  This  latter  is  the  more  slow,  but  most  sure  and  certain  means 
of  bringing  about  the  destruction  of  the  government."  He  made  a 
fierce  and  violent  harangue,  arguing  the  case  against  the  defendant 
with  the  spirit  which  has  since  become  so  notorious  in  the  United 
States  courts  in  that  State.  The  pliant  jury  found  Mr.  Cooper  guilty, 
and  he  was  fined  $400  and  sent  to  jail  for  six  months.  He  subse- 
quently became  a  judge  in  Pennsylvania,  as  conspicuous  for  judicial 
tyranny  as  Mr.  Chase  himself,  and  was  removed  by  Address  of  the 
Legislature  from  his  seat,  but  afterwards  went  to  South  Carolina  where 
he  became  Professor  at  her  college,  and  a  famous  nullifier  in  1830.^ 

4.  In  1799,  or  1800,  Mr.  Callender,  a  native  of  England,  then  resid- 
ing at  Richmond,  in  Virginia  —  a  base  and  mean  fellow,  as  his  whole 
history  proved,  depraved  in  morals  and  malignant  in  temper  —  pub- 
lished a  pamphlet  called  "  The  Prospect  before  us,"  full  of  the  com- 
mon abuse  of  Mr.  Adams  and  his  administration.  He  was  indicted 
for  a  false,  malicious,  and  seditious  libel,  and  brought  to  trial  before 
Judge  Chase  who  pressed  the  Sedition  Law  with  inquisitorial  energy 
and  executed  it  with  intolerant  rigor.^  As  he  started  for  Richmond 
to  hold  the  trial,  he  declared  "  he  would  teach  the  lawyers  in  Virginia 
the  difference  between  the  liberty  and  the  licentiousness  of  the  press." 
He  told  the  marshal  "  not  to  put  any  of  those  creatures  called  Demo- 
crats on  the  jury,"  —  it  does  not  appear  that  he  had  his  own  Brother- 
in-Law  on  it  however;  —  "  he  likened  himself  to  a  schoolmaster  who 
was  to  turn  the  unruly  boys  of  the  Virginia  courts  over  his  knee  and 
give  them  a  little  wholesome  chastisement." 

Some  of  the  ablest  lawyers  in  Virginia  were  engaged  for  the  de- 
fence. But  they  could  not  secure  any  decent  regard  to  the  common 
forms  of  law,  or  to  the  claims  of  justice.  He  would  not  grant  the 
delay  always  usual  in  such  cases,  and  indispensable  to  the  defence. 
He  refused  to  allow  the  defendants'  counsel  to  examine  their  most 
imi)orta)it  witness,  and  allowed  them  to  pxit  none  but  written  ques- 
tions approved  of  by  him  I  The  defendant  was  not  allowed  to  prove 
the  truth  of  any  statements,  alleged  to  be  libellous,  by  establish- 
ing the  truth  of  one  part  through  one  witness  and  of  another  through 
a  dillcrent  one.  lie  would  not  allow  him  to  argue  to  the  jury  that 
the  law  was  unconstitutional.  "  We  all  know  that  juries  have  the 
right  to  decide  llic  law  as  well  as  the  fact,  and  the  Constitution  is  the 

1  'Wliarton,  Gr>'J.         «  Wharton,  45,  G88  ;  Chase's  Trial,  33  ;  4  JelTerson,  445,  44  7. 


ALIEN   AND    SEDITION    LAWS.  119 

Supreme  law  of  the  land."  "  Then,"  said  Mr.  Wirt,  "since  the  jury- 
have  a  right  to  consider  the  law,  and  since  the  Constitution  is  law,  it 
is  certainly  syllogistic  that  the  jury  have  a  right  to  consider  the  Con- 
stitution ;  "  and  the  judge  exclaimed,  "a  non  scqintur,  Sir  I"  "Sit 
down,  Sir  I"  Mr.  Wirt  sat  down.  The  judge  declared  "a  right  is 
given  to  the  jury  to  determine  what  the  law  is  in  the  case  before 
them,  and  not  to  decide  wheth(U-  a  statute  is  a  law  or  not,  or  whether 
it  is  void,  under  an  opinion  that  it  is  unconstitutional."  "  It  appears 
to  me  the  right  now  claimed  has  a  direct  tendency  to  dissolve  the 
Union."  "  No  citizen  of  knowledge  and  information  .  .  .  will  be- 
lieve, without  very  strong  and  indubitable  })roof,  that  Congress  will, 
intentionally,  make  any  law  in  violation  of  the  Federal  Constitution." 
"  If  such  a  case  should  happen,  the  mode  of  redress  is  pointed  out  in 
the  Constitution."  It  was  obvious  that  Congress  had  made  laws  in 
violation  of  the  Constitution,  and  he  insisted  that  the  jury  should 
enforce  those  laws  against  their  own  conscience.  After  all  his  violent 
injustice  he  of  course  declared  "the  decisions  of  courts  of  justice 
will  not  be  influenced  by  political  and  Zoca/ principles  and  prejudices." 
The  packed  jury  found  the  prisoner  guilty.  He  was  fined  $200  and 
sent  to  jail  for  nine  months. 

But  Virginia  was  too  high-spirited  to  bear  this.  Nay,  Gentlemen  of 
the  Jury,  the  whole  Nation  then  was  too  fond  of  justice  and  liberty  to 
allow  such  wickedness  to  proceed  in  the  name  of  law.  "  Virginia  was 
in  a  flame ;  "  the  lawyers  "  throughout  the  country  were  stung  to  the 
quick."  They  had  not  been  so  long  under  the  slave-power  then  as 
now.  At  this  day,  Gentlemen,  such  conduct,  such  insolence,  yet 
more  oppressive,  rouses  no  general  indignation  in  the  lawyers.  But 
then  the  Alien  and  Sedition  Laws  ruined  the  Administration,  and 
sent  Mr.  Adams  —  who  yet  never  favored  them  —  from  his  seat ; 
his  successor,  Mr.  Jefferson,  says,  "  /  discharged  every  person  under 
punishment,  or  prosecution,  under  the  Sedition  Laiv,  because  I  con- 
sidered and  now  consider,  that  law  to  be  a  nullity  as  absolute  and  as 
palpable  as  if  Congress  had  ordered  us  to  fall  doivn  and  worsliip  a 
golden  imaged  ^  .Judge  Chase  was  impeached  by  the  Plouse  of 
Representatives,  tried  by  the  Senate,  and  only  escaped  condemnation 
by  the  prejudice  of  the  political  partisans.  As  it  was,  a  majority- 
were  in  favor  of  his  condemnation.  But  the  Constitution,  properly, 
recpires  two  thirds.  Judge  Chase  escaped  by  this  provision.  But 
his  influence  was  gone. 

The  Alien  and  Sedition  Laws,  which  sought  to  gag  the  People, 
and  make  a  Speech  a  "  misdemeanor,"  soon  went  to  their  own  place  ; 
and  on  the  4th  of  July,  1840,  Congress  passed  a  law  to  pay  Mr.  Lyon 

^  4  Jefferson,  Correspondence  in  Wharton,  721. 


120  TRIAL   BY  JURY. 

and  others  the  full  amount  of  the  fine  and  costs  levied  upon  them, 
with  interest  to  the  date  of  payment:  a  Committee  of  the  House 
had  made  a  report  on  Lyon's  case,  stating  that  "the  law  was  uncon- 
stitutional, null,  and  void,  passed  under  a  mistaken  exercise  of  undele- 
gated power,  and  that  the  mistake  ought  to  be  remedied  by  returning 
the  fine  so  obtained,  with  interest  thereon."  ^  .Just  now,  Gentlemen, 
Judge  Chase  and  the  principles  of  the  Sedition  Law  appear  to  be  in 
hidi  favor  with  the  Federal  Courts :  but  one  day  the  fugitive  slave 
bill  will  follow  the  Alien  and  Sedition  Bill,  and  Congi-ess  will  refund 
all  the  money  it  has  wrenched  unjustly  from  victims  of  the  Court. 
There  is  a  To-morrow  after  to-day,  and  a  Higher  Law  which  crushes 
all  fugitive  slave  bills  into  their  kindred  dust. 

Gentlemen,  allow  me  to  vary  this  narrative  of  British  and  Ameri- 
can despotism  by  an  example  from  a  different  nation.  I  will  refresh 
you  with  a  case  more  nearly  resembling  that  before  you;  it  is  an 
instance  of  German  tyranny.  In  1853,  Dr.  Gervinus,  Professor  of 
History  in  the  University  of  Heidelberg  in  Germany,  published  this 
little  volume  of  about  200  pages,^  "  An  Introduction  to  the  History 
of  the  19th  Century."  Mr.  Gervinus  is  one  of  the  most  enlightened 
men  in  the  world,  a  man  of  great  genius  for  the  philosophical  investi- 
gation of  human  history,  and  enriched  with  such  culture  and  learning 
as  is  not  common  even  in  that  home  of  learned  men.  His  book, 
designed  only  for  scholars,  and  hardly  intelligible  to  the  majority  of 
readers  even  in  America,  sets  forth  this  great  fact, —  The  democratic 
tendency  of  mankind  shown  in  all  history. 

Gervinus  was  seized  and  brought  to  trial  on  the  24th  of  February, 
1853,  at  Mannheim,  charged  with  publishing  a  work  against  consti- 
tutional monarchy,  intending  thereby  to  depose  the  lawful  head  of 
the  State,  the  Grand  Duke  Charles  Leopold,  and  with  changing  and 
endangering  the  constitution,  "disturbing  the  public  tranquillity  and 
order,  and  incurring  the  guilt  of  High  Treason."  In  short  he  was 
charged  with  "  obstructing  an  officer"  and  attempting  to  dissolve  the 
Union,"  with  "  levying  war."  For  his  trial  the  judge  purposely 
selected  a  small  room,  though  four  times  larger  than  what  now  cir- 
cumscribes the  dignity  of  this  Honorable  Court;  he  did  not  wish  the 
people  to  hear  Gervinus's  dcTence.  But  I  will  read  you  some  ex- 
tracts from  tiie  preface  to  the  English  translation  of  his  book:  — 

"  I  ofTcr  notliiiif];  purely  tliooretical  or  speculative,  and  as  few  opinions  and  conclu- 
sions as  can  possibly  he  given  in  a  historical  narrative.     The  work  finally  reaches  a 

1  2  Sc88.  2Cth,  CoiiR.  Doc.  8C,  IIo.  IJcp.;  Wharton,  314,  G79.  Sec  also  Virginia  Resolutions  (1850), 
ftn<l  tlic  remarks  in  the  Deliatcs.  Then  Virginia  was  faitlifiil  to  State  Itiglits,  and  did  a  service  to 
the  cause  of  Liberty  wliicli  no  subsequent  misconduct  sJiould  make  us  forget. 

■•^  2  Kiuleitung  in  die  Geschiciitc  dcs  neunzelniteu  Jalu-lnindcrts ;  Leipzig,  1853.  8vo.  pp.  181. 


DR.    GERVINUS    IN    GERMANY.  121 

period  when  the  Present  and  tlie  Future  become  its  subject,  and  when  therc^fore  it  can 
no  longer  reh\te  any  events  of  liistory  wliich  have  been  completed ;  and  is  confined  to 
the  siuiple  statement  of  Me  Fact  that  opposite  opinions  exist,  and  may  yet  be  advanced, 
concerning  the  problem  of  the  Future.  Tliese  opinions  are  themselves  weighed 
against  one  auother,  but  their  value  is  not  determined  by  dogmas,  or  phrases,  or  decla- 
mations, but  simply  by  facts.  If  the  balance  incline  towards  a  more  liberal  form  of 
government,  towards  democratic  mstitutious,  and  therefore  towards  self-government, 
and  the  participation  of  the  many  rather  than  of  the  few  in  the  affairs  of  the  State,  I 
am  not  to  blame,  nor  is  it  my  ordinance,  but  tliat  of  History  and  of  Providence.  My 
work  is  only  (what  all  historical  narrative  should  be)  a  vindication  of  the  decrees  of 
Providence ;  and  to  revolt  against  them  appears  to  me  neither  pious  in  a  moral  point  of 
view,  nor  wise  In  a  political.  Tliat  wlilch  is  proved  by  the  most  remarkable  facts  of 
History,  will  not  be  altered  in  the  smallest  degree,  by  the  suppression  of  my  work,  or 
by  my  condemnation.  The  charge  on  this  head  is  an  absurdity,  since  nO  rational  end 
can  be  attained  by  it.  It  aims  at  the  suppression  of  a  truth  which,  should  I  not  tell  it, 
will  be  ever  louder  and  louder  proclaimed  by  the  Facts  of  History. 

"  To  believe  such  a  thing  possible  is  a  proof  how  limited  an  idea  exists  of  the  eager 
inquiry  going  on  after  knowledge  —  and  truth,  the  source  and  origin  of  all  knowledge. 
There  will  always  be  so  eager  a  demand  for  a  history  of  the  Present  time,  that,  even 
should  1  be  prevented,  ten  others  would  arise,  only  to  proclaim  the  louder,  and  to 
repeat  the  oftener,  the  truth  which  is  here  suppressed.  To  believe  that  the  philosophy 
of  History  can  be  silenced  by  persecution,  argues  an  entire  ignorance  even  of  the 
external  mechanism  of  philosophy.  A  political  pamphlet,  intended  to  serve  a  particu- 
lar purpose  at  a  particular  period,  may  be  suppressed.  The  author  of  such  a  pamphlet, 
bent  on  agitation,  can  easily  console  himself  for  its  suppression.  It  has  cost  him  little 
time  and  trouble ;  it  is  only  a  means  to  an  end,  one  means  out  of  many  means,  any  of 
which,  when  this  is  lost,  will  serve  the  author  as  well.  But  it  is  not  thus  with  philo- 
sophical works,  it  is  not  thus  with  the  work  before  me.  This  book  is  deeply  rooted  in 
the  vocation  of  my  whole  life,  and  is  the  end  of  my  philosoj)hical  research ;  I  have 
prepared  myself  for  it  by  the  labor  of  years,  and  the  labor  of  years  will  be  necessary 
for  its  completion.  I  have  reached  a  time  of  life  when  I  can  neither  change  my  voca- 
tion, nor  even  cease  to  labor  in  this  vocation.  I  am  also  so  imbued  with  my  philos- 
ophy, that  even  if  I  could  change  I  would  not.  I  may  be  hindei-ed  in  the  prosecu- 
tion of  this  work  for  four  months,  but  in  the  fifth  I  shall  return  to  it.  For  a  judicial 
sentence  cannot  arrest  (like  a  mere  pamphlet)  the  philosophical  scheme  interwoven 
into  a  whole  existence." 

"  If  It  is  possible  that  this  '  Introduction '  can  be  condemned  in  Germany,  that  it 
can  be  prohlbitc.d,  that  by  these  means  the  work  should  be  strangled  in  its  birth,  then 
the  philosophy  of  history  has  no  longer  a  place  in  Germany.  The  tribunal  of  Baden 
will  have  given  the  first  blow,  in  pronouncing  judgment  on  a  matter  Avhich  is  purely 
philosophical,  and  Germany,  whose  freedom  of  philosophical  research  has  been  her 
pride  and  her  boast,  of  which  even  the  various  administrations  of  the  nation  have 
never  been  jealous,  will  receive  a  shock  such  as  she  never  before  sustained." 

"  ]\Iy  book  is  on  so  strictly  a  philosophical  plan,  and  treats  of  such  comprelienslve 
historical  questions,  that,  pr(3perly,  no  judgment  of  any  value  could  be  pronounced 
upon  it  but  by  the  professed  historian,  of  whom  there  are  not  two  dozen  in  all  Ger- 
many. Among  them  there  has  not,  to  this  hour,  been  found  one  competent  to  give  an 
opinion  in  a  few  weeks  on  a  book  Avhich  Is  the  fruit  of  half  a  life.  On  the  other  hand, 
there  was  soon  a  whole  set  of  fanatical  partisans  and  obstreperous  bunglers  In  a  neigh- 
boring press,  who  in  eight  days  had  condemned  this  work,  in  some  instances,  by  calling 
it  an  historical  commonplace,  and  In  others,  a  political  pamphlet  with  '  deslrtictife  ten- 
dencies.'   At  the  same  time,  and  In  a  manner  easily  accounted  for,  under  the  influence 

11 


122  TRIAL   BY   JURY. 

of  such  an  expression  of  public  opinion,  and  almost  before  any  otlier  could  make  itself 
heard,  accusations  were  made  against  the  book,  and  it  was  confiscated.  Let  no  one 
take  it  amiss  if,  in  the  urgency  of  my  defence,  1  for  a  moment  lay  aside  modesty,  as  far 
as  such  modesty  might  prove  injurious  to  my  cause.  My  work  demonstrates  a  law  of 
historical  development,  which  I  do  not  claim  as  my  property,  or  as  originating  in  me, 
but  which  has  been  demonstrated  more  than  two  thousand  years  ago  by  the  greatest 
thinker  of  all  ages,  derived  from  observations  on  the  history  of  the  Grecian  State.  To 
repeat  a  law  which  has  been  already  demonstrated,  ought  to  appear  but  a  trilling  cir- 
cumstance, and  indeed  might  merit  the  term  of  an  historical  commonplace ;  we  could 
even  suppose  that  it  might  be  mentioned  in  a  popular  as  well  as  in  a  philosophical 
book.  iS^evertheless  this  law  has  scarcely  been  twice  repeated  in  the  course  of  two 
thousand  years,  and  then  only  by  two  imitators,  who  scarcely  understood  its  whole 
purport,  though  they  were  the  most  thinking  heads  of  the  most  thinking  nations  — 
Machiavelli  in  Italy,  and  Hegel  in  Germany.  I  solemnly  ask  of  the  whole  philosophical 
world  if  my  words  can  be  gainsaid,  and  to  name  for  me  the  third,  by  whom  the  Aris- 
totelian law,  of  which  I  speak,  has  been  repeated  and  understood.  I  have  ventured  to 
consider  the  thought  of  Aristotle,  and  to  apply  it  to  the  history  of  modern  European 
States,  and  I  found  it  confirmed  by  a  series  of  developments  which  have  occupied  two 
thousand  years.  I  also  found  that  the  whole  series  of  events  confirmatory  of  this  law 
(itself  deduced  from  experience)  are  not  yet  entirely  fulfilled.  Like  the  astronomer, 
who,  from  a  known  fraction  of  the  path  of  a  newly  discovered  planet,  calculates  its 
whole  course,  I  ventured  to  divine  that  which  is  still  wanting,  and  which  may  yet  take 
centuries  to  complete.  I  turned  silently  to  those  whose  profession  was  the  study  of 
history,  to  prove  the  justice  of  my  calculations;  I  handed  my  book  over  to  coming 
generations  and  coming  centuries,  with  the  silent  demand,  when  the  required  series  of 
events  shall  be  fulfilled,  then  to  pronounce  the  final  sentence,  whether  this  law,  and  its 
purport  as  now  explained,  be  just  or  not.  This  is  the  philosophical  character,  and 
these  the  contents  of  my  book  —  no  more  than  was  indispensably  necessary  to  make 
this  calculation.  And  now  comes  the  charge,  and  pronounces  that  in  the  character  of 
a  pamphleteer,  I  have  endeavored  to  excite  a  revolution  in  the  Grand  Duchy  of 
Baden,  or  in  the  German  Confederation." 

On  the  8th  of  March  — it  should  have  been  the  fifth  —  the  thing 
came  to  a  close.  On  account  of  "  his  hostility  to  constitutional  mon- 
archy, and  his  declaration  of  its  weakness,  his  denial  of  its  good- 
will [towards  the  people],  and  his  representing  that  the  American 
Democracy  was  a  universal  necessity  and  a  desirable  fact,"  sen- 
tence was  pronounced  against  him,  condemning  him  to  an  imprison- 
ment of  four  months,  and  ordering  his  book  to  be  destroyed."  There 
was  no  Jury  of  the  People  to  try  him !  Here  our  own  Court  has  an 
admirable  precedent  for  punishing  me  for  a  word.^ 

But  even  in  Massachusetts,  within  twenty  years,  an  attempt  was 
made  to  punish  a  man  for  his  opinions  on  a  matter  of  history  which 
had  no  connection  with  politics,  or  even  with  American  Slavery.  In 
.July,  1H.34,  Rev.  George  R.  Noyes,  a  Unitariaii  Minister  at  Peter- 
sham, a  retired   scholar,  a  blameless  man  of  line  abilities  and  very 

'  See  J'refaco  to  English  Translation  of  Gcrvinus  (London,  1853)  ;  and  Allg.  Lit. 
Zeitung  fiir  1853,  pp.  8G7,  883,  931,  94G,  994,  1131. 


FREEDOM   OF   TTIOrCIIT   IN    BOSTON.  123 

large  attainments  in  theological  learning,  wrote  an  elaborate  article  in 
the  Christian  Examiner,  the  organ  of  the  "  Liberal  Christians"  in 
America,  in  which  he  maintained  that  Jesus  of  Nazareth  is  not  the 
Messiah  predicted  in  the  Old  Testament.  "  It  is  difllcult,"  said  this 
accomplished  Theologian,  "to  point  out  any  predictions  which  have 
been  properly  fulfilled  in  Jesus."  Peter  and  Paul  found  the  death  and 
resurrection  of  Jesus  in  the  16th  Psalm,  but  they  "  were  in  an  error," 
which  should  not  surprise  us,  for  "the  Evangelists  and  Apostles 
never  claimed  to  be  inspired  reasoners  and  interpreters ;"  "  they  par- 
took of  the  errors  and  prejudices  of  their  age  in  things  in  which 
Christ  had  not  instructed  them."  "  The  commonly  received  doctrine 
of  the  inspiration  of  all  the  writings  included  in  the  Bible,  is  a  mill- 
stone hung  round  its  neck  [the  neck  of  Christianity],  sufficient  to 
sink  it." 

The  article  was  written  with  remarkable  candor  and  moderation, 
and  indicated  a  devout  and  holy  purpose  in  the  author.  The  doc- 
trines were  by  no  means  new.  But  Hon.  James  T.  Austin,  was  then 
Attorney-General  of  the  State  ;  his  attention  being  called  to  it  by 
an  anonymous  writer  in  a  newspaper,  he  attacked  Mr.  Noyes's  article, 
thus  giving  vent  to  his  opinion  thereon:  "  He  considers  its  learning 
very  ill  bestowed,  its  researches  worse  than  useless,  and  that  its 
tendency  is  to  strike  down  one  of  the  pillars  on  which  the  fabric  of 
Christianity  is  supported."  "Its  tendency  is  to  shock  the  pious, — 
confound  the  unlearned,  —  overwhelm  those  who  are  but  moderately 
versed  in  the  recondite  investigations  of  theology,  and  above  all  to 
open  an  arsenal  whence  all  the  small  wits  of  the  infidel  army  may 
supply  themselves  with  arms.  Its  greater  evil  is  to  disarm  the  power 
of  public  opinion."  "  It  certainly  disarms  to  a  great  degree  the 
power  of  the  law."  ^ 

Gentlemen,  suppose  it  had  not  been  necessary  to  submit  the  matter 
to  a  Jury,  what  would  the  right  of  freedom  of  conscience  be  worth  in 
the  hands  of  such  a  man,  "  dressed  in  a  little  brief  authority?"  It 
was  said  at  the  time  that  the  author  was  actually  presented  to  the 
Grand-Jury,  and  an  attempt  made  to  procure  an  indictment  for 
Blasphemy,  or  Misdemeanor.  I  know  not  how  true  the  rumor  was. 
The  threat  of  prosecution  came  to  nought,  and  Dr.  Noyes,  one  of  the 
most  scholarly  men  in  America,  is  now  Professor  of  Theology  in  the 
Divinity  School  at  Cambridge,  and  an  honor  to  the  liberal  sect  which 
maintains  him  there. 

Gentlemen,  when  laws  are  unjustly  severe,  denouncing  a  punish- 
ment highly  excessive,  the  juries  refuse  to  convict.     Examples  of  this 

1  16  Examiner,  321  ;  17  ibid.  127  ;  Boston  Atlas,  July  Stli  and  9tli,  1831. 


124  TRIAL   BY   JURY. 

are  very  common  in  trials  for  capital  offences,  now  that  the  conscience 
of  moral  men  has  become  so  justly  hostile  to  the  judicial  shedding  of 
blood.  There  is  no  doubt  with  the  Jurors  as  to  the  Fact,  none  as  to 
the  Law;  but  they  say  it  is  unjust  to  apply  such  a  law  to  such  a  fact 
and  hang  a  man.  The  Jury  exercising  their  moral  discretion,  spite 
of  the  judge,  and  spite  of  the  special  statute  or  custom,  are  yet 
faithful  to  their  official  obligation  and  manly  duty,  and  serve  Justice, 
the  ultimate  End  and  Purpose  of  Law,  whereto  the  statutes  and  cus- 
toms are  only  provisional  means.  Foolish  judges  accuse  such  juries 
of  "  Perjury ; "  but  it  is  clear  enough.  Gentlemen,  where  the  false- 
ness is. 

"  Do  you  take  notice  of  that  juryman  dressed  in  blue  ?  "  said  one 
of  the  judges  at  the  old  Bailey  to  Judge  Nares.  "  Yes."  "  Well, 
then,  take  my  word  for  it,  there  will  not  be  a  single  conviction  to-day 
for  any  capital  offence."  So  it  turned  out.  The  "gentleman  in  blue" 
thought  it  unjust  and  wicked,  contrary  to  the  ultimate  Purpose  of 
law,  to  hang  men,  and  he  was  faithful  to  his  juror's  oath  in  refusing 
to  convict.  Of  course  he  did  not  doubt  of  the  Fact,  or  the  Law,  only 
of  the  Justice  of  its  Application.  One  day  there  will  be  a  good  many 
"  gentlemen  in  blue." 

To  prevent  this  moral  independence  of  the  jury  from  defeating  the 
immoral  aim  of  the  government,  or  of  the  judges,  or  the  legislature  — 
the  court  questions  the  jurors  beforehand,  and  drives  off  from  the 
panel  all  who  think  the  statute  unfit  for  such  application.  Gentle- 
men, that  is  a  piece  of  wicked  tyranny.  It  would  be  as  unfair  to 
exclude  such  men  from  the  legislature,  or  from  the  polls,  as  from  the 
jury  box.  In  such  cases  the  defendant  is  not  tried  by  his  "country," 
but  by  a  jury  packed  for  the  purpose  of  convicting  him,  spite  of  the 
moral  feelings  of  the  people. 

Sometimes  the  statute  is  so  framed  that  the  jurors  must  by  their 
verdict  tell  an  apparent  falsehood,  or  commit  a  great  injustice.  When 
it  was  a  capital  offence  in  England  to  steal  forty  shillings,  and  evi- 
dence made  it  plain  that  the  accused  had  actually  stolen  eight  or  ten 
times  that  value,  you  all  know  how  often  the  jurors  brought  in  a  ver- 
dict of  '■'■  stealing  thirlij-nine  shillmgs.^'' '^  They  preferred  to  tell  what 
seemed  to  be  a  lie,  rather  than  kill  a  man  for  stealing  fifteen  or  twenty 
dollars.  The  verdict  of  not  guilty  would  have  been  perfectly  just 
in  form  as  in  substance,  and  conformable  to  their  official  oath. 

Gentlemen,  tyrannical  rulers,  and  their  servants,  despotic  and  cor- 
rupt judges,  have  sought  to  frighten  the  juries  from  the  exercise  of  all 
discretion  —  cither  moral  or  intellectual.     To  that  end  they  threaten 

'  Sec  several  cases  of  this  kind  in  Snllivan  on  Abolition  of  i'uuishment  of  Death, 
(N.  y.  1811),  73.     Kanloul's  Works,  450. 


KELYNG   AND    SCROGGS   PUNISH   JURIES.  125 

them  before  the  verdict,  and  punish  them  when  they  decide  contrary 
to  the  wish  of  the  tyrant.  To  make  the  jurors  agree  in  a  unanimous 
verdict,  they  were  kei)t  without  "fire  or  water  or  food  or  bed"  until 
they  came -to  a  conclusion;  if  eleven  were  of  one  mind  and  the 
twelfth  not  convinced,  the  refractory  juror  was  fined  or  put  in  jail.^ 
If  the  verdict,  when  unanimously  given,  did  not  satisfy  the  judge  or 
his  master,  the  jurors  were  often  punished.^  I  have  already  shown 
you  how  the  juries  were  treated  —  with  fine  and  imprisonment  —  who 
acquitted  Tlirockmorton  and  Pcnn.-^  When  John  Lilburne  was  tried 
for  his  life  in  1653,  he  censured  the  authorities  which  prosecuted  him 
and  appealed  to  the  "  honorable  Jury,  the  Keepers  of  the  Liberties  of 
England:"  they  found  him  Not  Guilty,  and  were  themselves  brought 
before  the  council  of  State  for  punishment.  "  Thomas  Greene  of 
Snow-hill,  tallow  chandler.  Foreman  of  the  Jury,  being  asked  what 
the  grounds  and  reasons  were  that  moved  him  to  find  .  .  .  Lilburne 
not  guilty,  .  .  .  saith  ^  that  he  did  discharge  his  conscience,  in  ivliat  he 
then  did.,  and  that  he  icill  give  no  further  answer  to  any  questions  icliich 
shcdl  he  asked  him  vjmn  that  matter.''  "*  This  was  in  the  time  of  Crom- 
well ;  but  as  the  People  were  indignant  at  his  tyrannical  conduct  in 
that  matter,  and  his  insolent  attempt  to  punish  the  jurors,  they  es- 
caped without  fine  or  imprisonment.  Indeed  more  than  a  hundred 
and  twenty-five  years  before,  Thomas  Smith  had  declared  "  such 
doings  to  be  very  violent,  tyrannical,  and  contrary  to  the  liberty  and 
customs  of  the  realm  of  England."  Sir  Matthew  Hale  said  at  a  later 
day,  "  It  would  be  a  most  unhappy  case  for  the  judge  himself,  if  the 
prisoner's  fate  depended  upon  his  directions  ;  unhappy  also  for  the 
prisoner ;  for  if  the  judge's  opinion  must  rule  the  verdict,  the  trial  by 
jury  would  be  useless."^  Judge  Kelyng  was  particularly  hostile  to 
the  jury,  throwing  aside  "  all  regard  to  moderation  and  decency." 
He  compelled  the  grand-jury  of  Somersetshire  to  find  an  indictment 
against  their  consciences,  reproaching  Sir  Hugh  Wyndham,  the  fore- 
man, as  the  "  Head  of  a  Faction."  He  told  the  jury,  "  You  are  all 
my  servants,  and  I  will  make  the  best  in  England  stoop!"  He 
said  it  was  a  "misdemeanor"  for  them  to  discriminate  between 
murder  and  manslaughter;  that  was  for  the  court  to  determine.  But, 
Gentlemen,  it  does  not  appear  that  he  had  his  brother-in-law  on  that 
grand-jury.     Several  persons  were  indicted  for  "  attending  a  conven- 

1  Forsyth,  241,  243. 

-  Thomas  Smith,  Commonwealth,  (London,  1589,)  b.  iii.  c.  1.     Ilarorave,  in  C   St. 
Tr.  1019. 

»  See  above,  p.  95.     1  St.  Tr.  901 ;  6  St.  Tr.  9C7,  9G9,  999  ;  21  St.  Tr.  925. 
*  1  St.  Tr.  445. 

^  G  St.  Tr.  9G7,  note;  Bushell's  Case,  Ibid.  999,  and  Ilargrave's  note,  1013. 

11* 


126  UNITED    STATES   VS.   THEODORE   PARKER. 

tide;"  the  jury  acquitted  them  contrary  to  his  wish,  and  he  fined 
them  $334  apiece,  and  put  them  in  jail  till  it  was  paid.  On  another 
occasion,  this  servile  creature  of  Charles  II.  fined  and  imprisoned  all 
the  jurors  because  they  convicted  of  manslav filter  a  man  whom  he 
wanted  to  hang.  But  for  this  conduct  he  was  accused  in  the  House 
of  Commons,  and  brought  to  answer  for  it  at  their  bar.i 

In  1680  Chief  Justice  Scroggs  was  brought  up  before  the  House  of 
Commons  for  discharging  "a refractory  grand-jury"  —  such  an  one  as 
was  discharged  in  Boston  last  July :  Sir  Francis  Winnington  said, 
"  If  the  judges  instead  of  acting  by  law  shall  be  acted  by  their  own 
ambition,  and  endeavor  to  get  promotion  rather  by  worshipping 
the  rising  sun  than  doing  justice,  this  nation  will  soon  be  reduced  to 
a  miserable  condition."  "  As  faults  committed  by  judges  are  of  more 
dangerous  consequence  than  others  to  the  public,  so  there  do  not 
want  precedents  of  severer  chastisements  for  them  than  for  others."  ^ 

But  spite  of  the  continual  attempt  to  destroy  the  value  of  the  trial 
by  jury,  and  take  from  the  People  their  ancient,  sevenfold  shield,  the 
progress  of  liberty  is  perpetual.  Now  and  then  there  arose  lawyers  and 
judges  like  Sir  Matthew  Hale,  Holt,  Vaughan,  Somers,  Camden,  and 
Erskine,  who  reached  out  a  helping  hand.  Nay,  politicians  came  up 
to  its  defence.  But  the  great  power  which  has  sustained  and  devel- 
oped it  is  the  sturdy  and  unconquerable  Love  of  individual  Liberty 
which  is  one  of  the  most  marked  characteristics  of  the  Anglo-Saxon, 
whether  Briton  or  American.  The  Common  People  of  England  sent 
Juries,  as  well  as  regiments  of  Ironsides,  to  do  battle  for  the  Right. 
Gentlemen,  let  us  devoutly  thank  God  for  this  Safeguard  of  Free- 
dom, and  take  heed  that  it  suffers  no  detriment  in  our  day,  but  serves 
always  the  Higher  Law  of  the  Infinite  God. 

Now,  Gentlemen  of  the  Jury,  I  come  to  the  end. 


IV.     Op  the  Circumstances  of  this  Special  Case,  United  States 
VERSUS  Theodore  Parker. 

Here,  Gentlemen,  I  shall  speak  of  three  things. 

(I.)   Of  the  Fugitive  Slave  Bill. 

At  the  close  of  the  Revolution  there  was  a  contradiction  in  the 
national  consciousness  :  the  People  were  divided  between  the  Idea  of 
Freedom   and   the  Idea  of   Slavery.     There   consequently  ensued  a 

1  2  Campboll,  JustircH,  40r. ;  G   St.  Tr.  910;  Kclyng,  50;  3  Ilallani,  G,  note ;  Com- 
mons Journals,  IG  Oi't.  lG(i7. 
-4  Pari.  Jli^t.  1221. 


THE   FUGITIVE    SLAVE   I3ILL.  127 

struggle  between  the  two  clemeutri.  This  has  continued  ever  since 
the  Treaty  of  Peace  in  1783. 

Twice  tlie  Idea  of  Freedom  has  won  an  important  victory:  in  1787 
Slavery  was  prohibited  in  the  North- West  Territory ;  in  1808  the 
African  Slave  Trade  was  abolished.  Gentlemen,  this  is  all  that  has 
been  done  for  seventy-two  years ;  the  last  triumph  of  American  Free- 
dom over  American  Slavery  was  forty-seven  years  ago  I 

But  the  victories  of  Slavery  have  been  manifold  :  in  1787  Slavery 
came  into  the  Constitution,  —  it  was  left  in  the  individual  States  as 
a  part  of  their  "Republican  form  of  govermnent;  "  the  slaves  were 
counted  fractions  of  men,  without  the  personal  rights  of  integral  hu- 
manity, and  so  to  be  represented  by  their  masters ;  and  the  rendition 
of  fugitive  slaves  was  provided  for.  In  1792  out  of  old  territory  a 
new  Slave  State  was  made  and  Kentucky  came  into  the  Union. 
Tennessee  followed  in  1796,  Mississippi  in  1817,  Alabama  in  1819, 
and  thus  four  Slave  States  were  newly  made  out  of  soil  which  the 
Declaration  of  Independence  covered  with  ideal  freedom.  In  1793 
the  Federal  government  took  Slavery  under  its  special  patronage  and 
passed  the  first  fugitive  slave  bill  for  the  capture  of  such  as  should 
escape  from  bondage  in  one  State,  and  flee  to  another.  In  1803 
Louisiana  was  purchased  and  Slavery  left  in  that  vast  territory ;  thus 
the  first  expansion  of  our  borders  was  an  extension  of  bondage, — 
ovit  of  that  soil  three  great  States,  Louisiana,  Missouri,  Arkansas, 
have  since  been  made,  all  despotic,  with  more  than  half  a  million  of 
Americans  fettered  there  to-day.  Florida  was  purchased  as  slave  soil, 
and  in  1845  made  a  State  with  perpetual  Slavery  written  in  its  Con- 
stitution. In  1845  Texas  was  annexed  and  Slavery  extended  over 
nearly  four  hundred  thousand  square  miles  of  once  free  soil  ;  in  1848 
Slavery  was  spread  over  California,  Utah,  and  New  Mexico.  Here 
were  seven  great  victories  of  Slavery  over  Freedom. 

At  first  it  seemed  doubtful  which  was  master  in  the  federal  coun- 
cils;  but  in  1820,  in  a  great  battle  —  the  Missouri  Compromise  — 
Slavery  triumphed,  and  has  ever  since  been  master.  In  1845  Texas 
was  annexed,  and  Slavery  became  the  open,  acknowledged,  and  most 
insolent  master.  The  rich,  intelligent,  and  submissive  North  only 
registers  the  decrees  of  the  poor,  the  ignorant,  but  the  controlling 
South  ;  accepts  for  Oflicers  such  as  the  master  appoints,  for  laws  what 
the  Slave-driver  commands.  The  Slave-Power  became  predominant 
in  American  politics,  business,  literature,  and  "  Religion." 

Gentlemen  of  the  Jury,  do  you  doubt  what  I  say  ?  liook  at  this 
Honorable  Court,  —  at  its  Judges,  its  Attorney,  at  its  Marshal,  and  its 
JNIarshal's  Guard :  they  all  hold  their  officers  by  petty  serjeantry  of  me- 
nial service  rendered  to  the  Slave-Power.  It  would  be  an  insult  to 
any  one  of  this  august  fraternity  to  hint  that  he  had  the  faintest  respect 


128  UNITED    STATES    VS.    THEODORE    PARKER. 

for  the  great  Principles  of  American  Liberty,  or  any  love  of  justice 
for  all  men.  I  shall  not  be  guilty  of  that  "  contempt  of  court."  Gentle- 
men, I  had  expected  that  this  Court  would  be  solemnly  opened  with 
prayer.  I  knew  whom  the  Slave- Power  would  select  as  its  priest  to 
"intercede  with  Heaven."  I  expected  to  hear  the  Rev.  Nehemiah 
'  Adams,  D.  D.,  ask  the  God  be  worships  and  serves  to  take  "  a  South- 
side  view  of  American  Slavery"  in  general,  and  in  special  of  this 
prosecution  of  a  minister  of  the  Christian  Religion  for  attempting  to 
keep  the  Golden  Rule.  Should  the  Court  hereafter  indulge  its  public 
proclivity  to  prayer,  that  eminent  divine  will  doubtless  be  its  advocate 
—  fit  mediator  for  a  Court  which  knows  no  Higher  Law. 

Well,  Gentlemen,  that  sevenfold  triumph  was  not  enough.  Slavery 
will  never  be  contented  so  long  as  there  is  an  inch  of  free  soil  in  the 
United  States  I  New  victories  must  be  attempted.  Mr.  Toombs  has 
declared  to  this  noble  Advocate  of  Justice  and  Defender  of  Humanity, 
[John  P.  Hale]  who  renews  the  virtuous  glories  of  his  illustrious 
namesake.  Sir  Matthew  Hale,  that,  "  Before  long  the  master  will  sit 
down  with  his  slaves  at  the  foot  of  Bunker  Hill  Monument."  But 
one  thing  disturbed  our  masters  at  the  South — the  concubine  runs 
away  from  her  lusty  lord,  the  mulatto  slave  child  from  her  white 
father ;  I  have  had  the  "  besi  blood  of  Virginia,"  fugitive  children 
of  her  "  first  families"  in  my  own  house,  and  have  given  many  a  dol- 
lar to  help  the  sons  and  daughters  of  "  Southern  Democrats"  enjoy  a 
taste  of  Northern  Democracy.  The  slaves  would  run  away.  The 
law  of  1793  was  not  adequate  to  keep  or  catch  these  African  Chris- 
tians who  heeded  not  the  Southern  command,  "  Slaves,  obey  your 
masters."  The  Decision  of  the  Supreme  Court  in  the  Prigg  case,^ 
showed  the  disposition  of  the  Federal  Government,  and  took  out  of 
the  hands  of  the  individual  States  the  defence  of  their  own  citizens. 
Still  the  slaves  would  run  away.  In  1849  there  were  more  than  five 
hundred  fugitives  from  Southern  Democracy  in  Boston  —  and  their 
masters  could  not  catch  them.  What  a  misfortune!  Boston  re- 
tained ^200,000  of  human  Property  of  the  Christian  and  chivalric 
South!     Surely  the  Union  was  "in  danger." 

In  1850  came  the  fugitive  slave  bill.  When  first  concocted,  its 
author,  —  a  restless  politician,  a  man  of  small  mind  and  mean  charac- 
ter, with  "  Plantation  manners,"  —  thought  it  was  "too  bad  to  pass." 
He  designed  it  not  for  an  actual  law,  but  an  insult  to  the  North  so 
aggravating  that  she  must  resist  the  outrage,  and  then  there  would 
be  an  opportunity  for  some  excitement  and  agitation  at  the  South  — 
and  perhaps  some  "nullification"  in  South  Carolina  and  Virginia;  and 
in  that  general  fermentation  who  knows  what  scum  would  be  thrown 

'  IG  Potci-s,  GIG. 


THE   FUGITIVE    SLAVE   BILL.  129 

up!  Even  Mr.  Clay  "  never  expected  the  law  would  be  enforced." 
"  No  Northern  gentleman,^''  said  he,  "  will  ever  help  return  a  fugitive 
slave."     It  seemed  impossible  for  the  bill  to  pass. 

But  at  that  time  Massachusetts  had  in  the  Senate  of  the  nation  a 
disappointed  politician,  a  man  of  great  understanding,  of  most  mighty 
powers  of  speech, — 

"  Created  liugest  that  swim  the  ocean  stream,"  — 

and  what  more  than  all  else  contributed  to  his  success  in  life,  the  most 
magnificent  and  commanding  personal  appearance.  At  that  time  — 
his  ambition  nothing  abated  by  the  many  years  which  iiiake  men 
venerable,  —  he  was  a  bankrupt  in  money,  a  bankrupt  in  reputation, 
and  a  bankrupt  in  morals  —  I  speak  only  of  his  public  morals,  not 
his  private,  —  a  bankrupt  in  political  character,  pensioned  by  the 
Mon^y  Power  of  the  North.  Thrice  disappointed,  he  was  at  that 
time  gaming  for  the  Presidency.  When  the  South  laid  down  the 
fugitive  slave  bill,  on  the  national  Faro-table,  Mr.  Webster  bet  his 
all  upon  that  card.  He  staked  his  mind — and  it  was  one  of  vast  com- 
pass ;  his  eloquence,  which  could  shake  the  continent ;  his  position, 
the  senatorial  influence  of  Massachusetts;  his  wide  reputation, 
which  rung  with  many  a  noble  word  for  justice  and  the  Rights  of 
man ;  he  staked  his  conscience  and  his  life.  Gentlemen,  you  know 
the  rest,  —  the  card  won,  the  South  took  the  trick,  and  Webster  lost 
all  he  could  lose,  —  his  conscience,  his  position,  his  reputation;  not 
his  wide-compassing  mind,  not  his  earth-shaking  eloquence.  Finally 
he  lost  his  —  life.  Peace  to  his  mighty  shade.  God  be  merciful  to 
him  that  showed  no  mercy.  The  warning  of  his  fall  is  worth  more 
than  the  guidance  of  his  success.  Let  us  forgive ;  it  were  wicked 
to  forget.  For  fifty  years  no  American  has  had  such  opportunity 
to  serve  his  country  in  an  hour  of  need.  Never  has  an  American  so 
signally  betrayed  the  trust  —  not  once  since  Benedict  Arnold  turned 
a  less  ignoble  traitor ! 

Gentlemen,  you  know  the  speech  of  the  7th  of  March.  You  know 
it  too  well.  He  proposed  to  support  the  fugitive  slave  bill  "  with  all 
its  provisions,  to  the  fullest  extent."  At  that  time  this  bill  of  abomi- 
nations was  worse  than  even  now ;  for  then  it  left  the  liberty  of  a  man 
to  the  discretion  not  only  of  any  judge  or  commissioner  of  any  Fed- 
eral court,  but  to  any  clerk  or  marshal  thereof,  nay,  to  any  collector  of 
the  customs  and  every  one  of  the  seventeen  thousand  postmasters  in 
the  United  States  I  It  provided  that  an  affidavit  made  before  any 
officer  empowered,  by  the  United  States  or  any  State,  to  administer 
oaths,  should  be  taken  as  conclusive  evidence  to  prove  a  man  a  slave ! 
So  John  Smith  of  some  unknown  town  in  Texas,  might  make  affi- 


130  UNITED    STATES    VS.   THEODORE   PARKER. 

davit  before  John  Jones,  a  justice  of  peace  in  the  same  place,  that 
Lewis  Hayden,  or  Wendell  Phillips,  or  his  Honor  Judge  Curtis,  was 
his  (Smith's)  slave,  and  had  escaped  to  Boston:  might  bring  hither 
John  Brown,  a  Postmaster  from  Texas,  or  find  some  collector  of  the 
customs  or  minion  of  the  court  in  Massachusetts,  seize  his  victim, 
and  swear  away  his  liberty;  and  any  man  might  be  at  once  con- 
signed to  eternal  bondage !  All  that  the  bill  provided  for,  —  and  au- 
thorized the  kidnapper  to  employ  as  many  persons  as  he  might  think 
proper  to  accomplish  his  purpose  by  force,  at  the  expense  of  the  United 
States !  All  this  Mr.  Webster  volunteered  to  support  "  to  the  fullest 
extent." 

The  bill  was  amended,  here  bettered,  there  worsened,  and  came  to 
the  final  vote.  Gentlemen,  the  Money  Power  of  the  North  joined  the 
Slave  Power  of  the  South  to  kidnap  men  in  America  after  1850,  as  it 
had  kidnapped  them  in  Africa  before  1808.  Out  of  fifty  Senators 
only  twelve  said,  No;  while  in  the  House  109  voted  Yea.  The*Hon. 
Samuel  A.  Eliot  gave  the  vote  of  Beacon  and  State  Streets  for  kid- 
napping men  on  the  soil  of  Boston.  The  one  Massachusetts  vote  for 
manstealing  must  come  from  the  town  which  once  bore  a  Franklin 
and  an  Adams  in  her  bosom ;  yes,  from  under  the  eaves  of  John 
Hancock's  house  I  That  one  vote  was  not  disgrace  enough  ;  his  suc- 
cessor [Hon.  William  Appleton]  must  take  a  needless  delight  in 
reaffirming  the  infamy.  When  the  bill  passed,  Gentlemen,  you  re- 
member how  Mr.  Webster  rejoiced  :  — 

'•  Now  is  the  ■winter  of  our  discontent 
Made  glorious  summer," 

was  his  public  outcry  on  the  housetop  I  And  Boston  fired  a  hundred 
guns  of  joy  I  Do  you  know  icho  fired  them?  Ask  Mr.  Attorney 
Hallett;  ask  Mr.  Justice  Curtis.     They  can  "instruct  the  jury." 

Gentlemen,  you  know  the  operation  of  the  fugitive  slave  bill.  It 
subverts  the  Purposes  of  the  Constitution,  it  destroys  Justice,  disturbs 
domestic  Tranquillity,  hinders  the  common  Defence  and  the  general 
Welfare,  and  annihilates  the  Blessings  of  Liberty.  It  defies  the  first 
Principles  of  the  Declaration  of  Independence,  —  think  of  the  fugitive 
slave  bill  as  an  appendix  to  that  document  I  It  violates  the  Idea  of 
Democracy.  It  contradicts  the  very  substance  of  the  Christian  Relig- 
ion—  the  two  great  commandments  of  Love  to  God,  and  Love  to 
man,  wlicrcon  "hang  aU  the  Law  and  the  Prophets."  It  makes  natu- 
ral hnniMnity  a  crinK!;  it  subjects  all- the  Christian  virtues  to  fine  and 
itii|)ris()nm('n1.      It  is  a  /cllrr.  tie  cachet  against  Philanthropy. 

(icnth'rncn  of  the  Jury,  you  know  the  fugitive  slave  bill  is  uncon- 
stitutional.    I  jiccd  not  argu(!  the  matter  ;  it  is  too  plain  to  need  proof. 


THE   FUGITIVE    SLAVE    BILL.  131 

See  how  it  opposes  Justice,  the  ultimate  purpose  of  human  law; 
nay,  the  declared  objects  of  the  Consiitution  itself!  But  yet  its  un- 
constitutionality has  been  most  abundantly  shown  by  our  own  fellow- 
citizens.  I  need  not  go  out  of  Massachusetts  for  defenders  of  Justice 
and  Law.  You  remember  the  Speeches  of  Mr.  Phillips,  Mr.  Sevv'all, 
Mr.  Rantoul,  Mr.  Sumner,  Mr.  Mann,  the  arguments  of  IMr.  Ilildreth. 
The  judges  before  you  by  nature  are  able-minded  men,  both  of  them  ; 
both  also  learned  as  lawyers  and  otherwise  well  educated, —  I  love  to 
honor  their  natural  powers,  and  their  acquired  learning;  would  I  could 
ofler  higher  praise.  Now,  I  will  not  insult  their  manly  understanding 
with  the  supposition  that  either  of  them  ever  thought  the  fugitive 
slave  bill  constitutional.  No,  Gentlemen,  it  is  not  possible  that  in 
the  personal  opinion  of  Mr.  Sprague,  or  even  Mr.  Curtis,  this  bill  can 
be  held  for  a  constitutional  law.  But  the  Court  has  its  oflicial  dress: 
part  of  it  is  of  silk  —  or  supposed  to  be,  —  the  gown  which  decorates 
the  outward  figure  of  the  man  who  wears  its  ample  folds;  it  is  made 
after  a  prescribed  pattern.  But  part  of  it  also  is  made  of  opinion 
which  hides  the  ability  and  learning  of  the  honorable  Court.  The 
constitutionality  of  the  fugitive  slave  bill  is  a  part  of  the  judge's 
official  dress  :  accordingly,  as  no  federal  judge  sits  without  his  "  silk 
gown,"  so  none  appears  without  his  "  opinion  "  that  the  fugitive  slave 
bill  is  constitutional.  But  if  the  court  should  solemnly  declare  that 
such  was  its  personal  opinion — Gentlemen  of  the  Jury,  I, —  I  — 
should  not  believe  it  —  any  more  than  if  they  declared  the  gown  of  silk 
was  the  natural  judicial  covering,  the  actual  "  true  skin "  of  the 
judges.  No,  Gentlemen,  these  judges  are  not  monsters,  not  naturally 
idiotic  in  their  Conscience.  This  opinion  is  their  official  robe,  a  sup- 
plementary cuticle,  an  artificial  epidermis,  woven  from  without,  to  be 
thrown  off"  one  day,  when  it  shall  serve  their  turn,  by  political  desqua- 
mation. Let  them  wear  it ;  "  they  have  their  reward."  But  you  and 
I,  Gentlemen,  let  us  thank  God  we  are  not  officially  barked  about 
with  such  a  leprous  elephantiasis  as  that.  You  are  to  judge  of  its 
constitutionality  for  yourselves,  not  to  take  the  purchased,  official 
opinion  of  the  judge  as  veil  for  your  Conscience  ;  let  it  hide  the  judges' 
if  they  like. 

Gentlemen,  I  lack  words  to  describe  the  fugitive  slave  bill ;  its 
sins  outrun  my  power  of  speech.  But  you  know  the  consequences 
which  follow  if  it  be  accepted  by  the  People,  submitted  to,  and  en- 
forced:  the  State  of  Massachusetts  is  nothing;  her  courts  nothing; 
her  juries  nothing;  her  laws  nothing;  her  Constitution  nothing  —  the 
Rights  of  the  State  ^re  whistled  away  by  the  "  opinion  "  of  a  fugitive 
slave  bill  judge,  the  rights  of  the  citizen — all  gone;  his  right  to  life, 
liberty,  and  the  pursuit  of  happiness  lies  at  the  mercy  of  the  meanest 
man  whom  this  Court  shall  ever  malce  a  Commissioner  to  kidnap  men. 


132  UNITED    STATES   VS.   TnEODOUE   PARKER. 

Yes,  Gentlemen  of  the  Jury,  you  hold  your  liberty  at  the  mercy  of 
George  T.  Curtis  and  Seth  J.  Thomas !  You  are  the  People,  "  the 
Country"  to  determine  whether  it  shall  come  to  this. 

You  know  the  motive  which  led  the  South  to  desire  this  bill,  —  it 
was  partly  pecuniary,  the  desire  to  get  the  work  of  men  and  not  pay 
for  it ;  partly  political,  the  desire  to  establish  Slavery  at  the  North. 
Mr.  Toombs  is  not  the  only  man  who  wishes  the  master  to  sit  down 
with  his  slaves  at  the  foot  of  Bunker  Hill  Monument  I  You  know 
the  motive  of  the  Northern  men  who  supported  the  bill; — words  are 
idle  here  I 

Gentlemen,  I  said  that  Boston  fired  a  hundred  jubilant  cannon 
when  the  fugitive  slave  bill  became  a  law.  It  was  only  a  part  of 
Boston  that  fired  them.  The  bill  was  odious  here  to  all  just  and 
honorable  men.  Massachusetts  hated  the  bill,  and  was  in  no  haste 
to  "conquer  her  prejudices"  in  favor  of  Justice,  Humanity,  and  the 
Christian  Religion  ;  she  did  not  like  the  "  disagreeable  duty  "  of  mak- 
ing a  public  profession  of  practical  Atheism.  At  first  the  yellow 
fever  of  the  slave-hunters  did  not  extend  much  beyond  the  pavements 
of  Boston  and  Salem  ;  so  pains  must  be  taken  to  spread  the  malady. 
The  greatest  efforts  were  made  to  induce  the  People  to  renounce  their 
Christianity,  to  accept  and  enforce  the  wicked  measure.  The  cry 
was  raised,  "  The  Union  is  in  danger : "  nobody  believed  it ;  they  least 
of  all  who  raised  the  cry.  Some  clergymen  in  the  Churches  of  Com- 
merce were  coaxed,  wheedled,  or  bought  over,  and  they  declared  kid- 
napping would  be  imputed  unto  men  for  "righteousness."  The 
actual  matistealer  in  Boston  was  likened  to  "faithful  Abraham"  in 
the  Hebrew  mythic  tale,  —  "  the  rendition  of  a  slave  was  like  the  sac- 
rifice of  Isaac."  One  Trinitarian  minister,  a  son  of  Massachusetts, 
laid  Conscience  down  before  the  Juggernaut  of  the  fugitive  slave  bill, 
another  would  send  his  own  mother  into  Slavery ;  both  had  their 
reward.  Editors  were  brought  over  to  the  true  faith  of  kidnapping. 
Alas,  there  were  some  in  Boston  who  needed  no  conversion;  who 
were  always  on  the  side  of  inhumanity.  There  were  "  Union  meet- 
ings "  called  to  save  the  Nation  ;  and  the  meanest  men  in  the  great 
towns  came  to  serve  as  Redeemers  in  this  Salvation  unto  kidnapping. 
Mr.  Webster  outdid  himself  in  giant  efforts  —  and  though  old  and 
sick,  he  wrought  with  mighty  strength.  So  in  the  great  poem  the 
fallen  angel,  his  Paradise  of  Virtue  lost,  — 

"  witli  bold  words 


I'roaking  the  horrid  silence  thus  began." 
"  To  do  aught  good  never  will  be  our  task, 
But  ever  to  do  ill  our  sole  delight, 
As  bring  the  contrary  to  His  high  -will 
Whom  we  resist  .... 


KANE   KIDNAPS    A   BABE   UNBORN.  133 

Let  us  not  slip  the  occasion  .... 

But  reassembling  our  alHicted  powers 

Consult  how  we  may  henceforth  most  offend 

Our  enemy ;  our  own  loss  how  repair, 

How  overcome  this  dire  calamity ; 

What  reinforcement  we  may  gain  from  hope, 

If  not  what  resolution  from  despair.' " 

One  class  of  men  needed  no  change,  no  stimulation.  They  were 
ready  to  execute  this  unjust,  this  unconstitutional  Act;  their  lamps 
were  trimmed  and  burning,  their  loins  girt  about,  their  feet  swift  to 
shed  blood.  Who  were  they  ?  Ask  Philadelphia,  ask  JVew  York, 
ask  Boston.  Look  at  this  bench.  The  Federal  Courts  were  as  ready 
to  betray  justice  in  1850  as  Kelyng  and  Jeffreys  and  Scroggs  and  the 
other  pliant  judges  of  Charles  II.  or  James  II.  to  support  his 
iniquities.     I  must  speak  of  this. 


(II.)   Of  the  conduct  of  the  Federal  Courts. 

Gentlemen  of  the  Jury,  that  you  may  understand  the  enormity  of 
the  conduct  of  the  federal  courts  and  the  peril  they  bring  upon  their 
victims,  I  must  refresh  your  memory  with  a  few  facts. 

1.  I  shall  begin  with  the  cases  in  Pennsylvania.  In  that  State  four 
officials  of  government  have  acquired  great  distinction  by  their  zeal 
in  enslaving  men,  McAllister,  Ingraham,  Grier,  and  Kane ;  the  two 
first  are  "  Commissioners,"  the  latter  two  "  Judges."  In  one  year  they 
had  the  glory  of  kidnapping  twenty-six  Americans  and  delivering 
them  over  to  Slavery.     Look  at  a  few  cases. 

(1.)  On  the  10th  of  March,  1851,  Hannah  Dellam  was  brought  be- 
fore Judge  Kane  charged  with  being  a  fugitive  slave.  She  was  far 
advanced  in  pregnancy,  hourly  expecting  to  give  birth  to  a  child.  If 
a  convicted  murderess  is  in  that  condition,  the  law  delays  the  execu- 
tion of  its  ghastly  sentence  till  the  baby  is  born,  whom  the  gallows 
orphans  soon.  The  poor  negro  woman's  counsel  begged  for  delay 
that  the  child  might  be  born  in  Pennsylvania  and  so  be  free,  —  a  poor 
boon,  but  too  great  for  a  fugitive  slave  bill  judge  to  grant.  The 
judge  who  inherits  the  name  of  the  first  murderer,  disgraced  the 
family  of  Cain  ;  he  prolonged  his  court  late  into  night,  that  he  might 
send  the  child  into  Slavery  while  in  the  bowels  of  its  mother  I  Judge 
Kane  held  his  "court"  and  gave  his  decision  in  the  very  building 
where  the  Declaration  of  Independence  was  signed  and  published  to 
the  world.  The  memorable  bell  which  summons  his  court,  has  for 
motto  on  its  brazen  lips,  "  Proclaim  Liberty  throughout  the  Land,  to 
all  the  inhabitants  thereof." 

(2.)   The  same  year  Rachel  Parker,  a  free  colored  girl,  was  seized 

12 


134  UNITED    STATES   VS.   THEODORE   PARKER. 

in  the  house  of  Joseph  C.  Miller  of  West-Nottingham,  Chester 
County,  by  Thomas  McCreary  of  Elkton,  Maryland.  Mr.  Miller 
pursued  the  kidnapper  and  found  the  girl  at  Baltimore,  and  brought 
a  charge  of  kidnapping  against  McCreary.  But  before  the  matter 
was  decided  Mr.  Miller  was  decoyed  away  and  murdered!  The 
man-hunter  was  set  free  and  the  girl  kept  as  a  slave,  but  after  long 
confinement  in  jail  was  at  last  pronounced  free  —  not  by  the  Pennsyl- 
vania "judge"  but  by  a  Baltimore  Jury!  ^ 

(3.)  The  same  year  occurred  the  Christiana  Tragedy.  Here  are 
the  facts. 

In  Virginia  a  general  law  confers  a  reward  of  $100  on  any  man 
who  shall  bring  back  to  Virginia  a  slave  that  has  escaped  into  an- 
other State,  and  gives  him  also  ten  cents  for  each  mile  of  travel  in 
the  chase  after  a  man.  Accordingly,  beside  the  officers  of  the  fugi- 
tive slave  bill  courts  commissioned  for  that  purpose,  there  is  a  body 
of  professional  Slave-hunters,  who  prowl  about  the  borders  of  Penn- 
sylvania and  entrap  their  prey.  In  September,  1850,  "  a  colored  man, 
known  in  the  neighborhood  around  Christiana  to  be  free,  was  seized 
and  carried  away  by  professional  kidnappers,  and  never  afterwards 
seen  by  his  family."  In  March,  1851,  in  the  same  neighborhood, 
under  the  roof  of  his  employer,  during  the  night,  another  colored  man 
was  tied,  gagged,  and  carried  away,  "  marking  the  road  along  which 
he  was  dragged  by  his  own  blood."  He  was  never  afterwards  heard 
from.  "  These  and  many  other  acts  of  a  similar  kind  had  so  alarmed 
the  neighborhood,  that  the  very  name  of  Kidnapper  was  sufficient  to 
create  a  panic."  ^ 

"  On  the  nth  of  September,  Edward  Gorsuch,  of  Maryland,  his  son,  DIckerson  Gor- 
such,  -with  a  party  of  friends,  and  a  United  States  officer  named  Kline,  who  bore  the 
warrant  of  Commissioner  Ingraham,  made  their  appearance  in  a  neighborhood  near 
Christiana,  Lancaster  County,  Pennsylvania,  in  pursuit  of  a  Slave.  They  lay  in  wait 
for  their  prey  near  the  house  of  William  Parker,  a  colored  man.  When  discovered 
and  challenged,  they  approached  the  house,  and  (jorsuch  demanded  his  Slave.  It  was 
denied  that  he  was  there.  High  words  ensued,  and  two  shots  were  fired  b}'  the  assail- 
ants at  the  house.  The  alarm  was  then  given  by  blowing  a  horn,  and  the  neighborhood 
roused.  A  party  of  colored  men,  from  thirty  to  fifty  strong,  most  of  them  armed  in 
some  way,  were  before  long  on  the  ground.  Castner  Hanway  and  Elijah  Lewis,  both 
white  men  and  Friends,  rode  up  before  the  engagement  began  and  endeavored  to  pre- 
vent bloodshed  by  j)crsuadlng  both  parties  to  disperse  peaceably.  Kline,  the  Deputy 
Marshal,  ordered  them  to  join  the  y^w.s.se,  Avhich  they,  of  course,  refused  to  do,  but  urged 
upon  him  the  necessity  of  withdrawing  his  men  for  their  own  safety.  This  he  finally 
did,  as  far  as  he  personally  was  concerned,  when  satisfied  that  there  was  actual  danger 
of  l^loody  resistance.  Gorsuch,  however,  and  his  party  persisted  in  their  attemi)t,  and 
he  and  two  of  his  party  fired  on  the  colored  men,  who  returned  the  fire  with  deadly 

1  20  Anti-SIiivory  Koport,  28  and  21;  Ibid.  34. 

'^  Hibtory  of  the  Trial  of  Ca^'itiiur  Iluiivvay  uud  others  for  Treason  (Philadelphia,  1S52),  35.  _ 


KANE    AND    GRIER   TRY   IIANWAY    FOR   TREASON.  135 

effect.  Gorsuch  Avas  killed  on  tlie  spot,  his  son  severely,  though  not  mortally,  wound- 
ed, and  the  rest  of  the  party  ])ut  to  iliglit.  The  dead  and  wounded  were  cared  for  by 
the  neighbors,  mostly  Friends  and  Abolitionists.  The  Slave,  for  the  capture  of  whom 
this  enterprise  was  undertaken,  made  his  escape  and  reached  a  land  of  safety. 

"  Judge  Grier  denounced  the  act  from  the  Bench  as  one  of  Treason.  A  party  of 
marines  were  ordered  to  the  ground  to  keep  tiie  peace  after  the  battle  had  been  fought 
and  won.  United  States  Marslial  Koberts,  Commissioner  Ingraham,  United  States 
District  Attorney  Ashmead,  with  a  strong  body  of  police,  accompanied  them,  and  kept 
the  seat  of  war  under  a  kind  of  martial  law  for  several  days.  The  country  was  scoured, 
houses  ransacked,  and  about  thirty  arrests  made.  Among  those  arrested  were  Castner 
Ilanway  and  Elijah  Lewis,  whose  only  crime  had  been  endeavoring  to  prevent  the 
effusion  of  blood.  The  prisoners  were  brought  to  Philadelphia,  examined  before  a 
Commissioner,  and  committed  on  a  charge  of  High  Treason.  At  the  next  term  of  the 
District  Court,  under  a  charge  from  Judge  Kane,  the  Grand-Jury  found  indictments 
against  all  of  them  for  this  crime."  ^ 

Mr.  Hanway  was  brought  to  trial  —  for  his  life,  charged  with 
"treason."  It  appears 'that  this  was  his  overt  act. —  He  was  a 
Quaker,  an  anti-slavery  Quaker,  and  a  "non-resistant;"  when  he 
heard  of  the  attack  on  the  colored  people,  he  rode  on  a  sorrel  horse  to 
the  spot,  in  his  shirt-sleeves,  with  a  broad  felt  hat  on ;  he  advised 
the  colored  men  not  to  fire,  "  For  God's  sake  don't  fire  ;"  but  when 
Deputy  Marshal  Kline  ordered  him  to  assist  in  the  kidnapping,  he 
refused  and  would  have  nothing  to  do  with  it.  Some  of  the  colored 
people  fired,  and  with  such  effect  on  the  Kidnappers  as  I  have  just 
now  shown.  It  appeared  also  that  Mr.  Hanway  had  said  the  fugi- 
tive slave  bill  was  unconstitutional,  and  that  he  would  never  aid  in 
kidnapping  a  man  —  words  which  I  suppose  this  Honorable  Court 
will  consider  as  a  constructive  "misdemeanor;"  "obstructing  an 
officer." 

For  this  "offence"  his  case  was  presented  to  the  grand-jury  of  the 
Circuit  Court  the  29th  of  September,  1851.  Judge  Kane  charged  the 
jury  —  laying  down  the  law  of  treason.  Mr.  Hanway  was  indicted 
for  "  wickedly  devising  and  intending  the  peace  and  tranquillity  of 
the  .  .  .  United  States  to  disturb;"  and  that  he  "wickedly  and  trai- 
torously did  intend  to  levy  war  against  the  said  United  States."  And 
also  that  he  "  with  force  and  arms,  maliciously  and  traitorously  did 
prepare  and  compose  and  .  .  .  and  cause  and  procure  to  be  prepared 
and  composed,  divers  books,  pamphlets,  letters,  and  declarations,  reso- 
lutions, addresses,  papers,  and  writings,  and  did  .  .  .  maliciously  and 
traitorously  publish  and  disperse  .  .  .  divers  other  books  .  .  .  contain- 
ing .  .  .  incitement,  encouragement,  and  exhortations,  to  move,  in- 
duce, and  persuade  persons  held  to  service  in  any  of  the  United 
States  .  .  .  who  had  escaped  ...  to  resist,  oppose,  and  prevent,  by 

^  20  Anti-Slavery  Report,  pp.  30,  31. 


136  UNITED    STATES    VS.    TnEODORE    PARKER. 

violence  and  intimidation,  the  execution  of  the  said  laws,  [that  is  the 
law  for  kidnapping  their  own  persons]." 

He  was  brought  to  trial  at  Philadelphia,  November  24th  1851,  be- 
fore Honorable  Judges  Kane  and  Grier,  then  and  subsequently  so 
eminent  for  their  zeal  in  perverting  law  and  doing  judicial  iniquity. 
Gentlemen  of  the  Jury  —  it  is  no  slander  to  say  this.  It  is  their  great 
glory  that  in  the  cause  of  Slavery  they  have  struck  at  the  first  princi- 
ples of  American  Democracy,  and  set  at  nought  the  Christian  Relig- 
ion.    It  is  only  their  panegyric  which  I  pronounce. 

On  behalf  of  the  government  there  appeared  six  persons  as  prose- 
cuting officers.  One  United  States  Senator  from  Pennsylvania  (Mr. 
Cooper),  the  Attorney- General  of  Maryland,  the  District  Attorney  of 
Pennsylvania,  the  Recorder  of  the  City  of  Philadelphia,  and  two 
members  of  her  bar.^  For  Mr.  Webster,  then  Secretary  of  State,  was 
highly  desirous  that  Maryland  should  send  her  Attorney-General, 
Hon.  Mr.  Brent,  to  help  the  government  of  fhe  United  States  prose- 
cute a  Quaker  miller,  a  Non-resistant,  for  the  crime  of  treason. 
Hon.  James  Cooper,  the  Pennsylvania  Senator,  also  appeared  on  be- 
half of  Maryland,  seeking  to  convict  one  of  his  own  constituents ! 
Gentlemen,  such  conduct  carries  us  back  to  the  time  of  the  Stuarts  ; 
but  despotism  is  always  the  same.  It  was  very  proper  that  the 
United  States  government  should  thus  outrage  the  common  decen- 
cies of  judicial  process. 

This  question  amongst  others  was  put  to  each  juror :  — 

"  Have  you  formed  an  opinion  that  tlie  law  of  the  United  States,  known  as  the  Fu- 
gitive Slave  Law  of  1850,  is  unconstitutional,  so  that  you  cannot  for  that  reason  con- 
vict a  person  indicted  for  a  forcible  resistance  thereto,  if  the  facts  alleged  in  the 
indictment  are  proved  and  the  court  hold  the  statute  to  be  constitutional  ?  " 

Thus  all  persons  were  excluded  from  the  jury  who  believed  this 
wicked  bill  a  violation  of  the  constitution ;  and  one  most  important 
means  of  the  prisoner's  legitimate  defence  was  purposely  swept  away 
by  the  court. 

Now  look  at  the  law  as  laid  down  by  the  government. 

Mr.  Ash  mead,  the  government's  Attorney,  said  when  the  Constitu- 
tion was  adopted  "  Men  had  not  then  become  wiser  than  the  laws 
[the  laws  of  England  and  colonial  laws  which  they  were  born  under 
and  broke  away  from]  ;  nor  had  they  learned  to  measure  the  plain 
and  unambiguous  letter  of  the  Constitution  by  an  artificial  standard 
of  their  own  creation  [that  is  the  Self-evident  Truth  that  all  men 
have  a  natural  and  unalienable  Right  to  Life,  Liberty,  and  the  Pur- 

'  History,  55,  57  ;  Report,  19  ;  2  Wallace. 


KANE   AND    GRIER   TRY   IIANWAY   FOR   TREASON.  137 

suit  of  Happiness]  ;  to  obey  or  disregard  it  acccording  as  it  came  up 
to  or  fell  beneath  it  [as  the  law  was  just  or  unjust]." 

^^You  ivill  receive  the  law  from  the  court:'  "  You  are  hound  bij  the 
instructions  ivhich  the  court  may  give  in  respect  to  it;"  "  i7  is  in  no 
sense  trne  that  you  are  judges  of  the  laiv."  ^^You  must  take  the  inter- 
pretation which  the  court  puts  upon  it.  You  have  a  right  to  apply  the 
law  to  the  facts,  but  you  have  no  right  to  go  further." 

"  The  crime  charged  against  this  defendant  is  .  .  .  that  of  levying- 
war  against  the  United  States.  The  phrase  levying  war  was  long  be- 
fore the  adoption  of  the  Constitution,  a  phrase  .  .  .  embracing  such  a 
forcible  resistance  to  the  laics  as  that  charged  against  this  defendant 
[that  is,  speaking  against  the  fugitive  slave  bill  and  refusing  to  kid- 
nap a  man  is  "levying  war  against  the  United  States]  !  " 

It  is  treason  "  if  the  intention  is  by  force  to  prevent  the  execution 
of  (my  one  .  .  .  of  the  general  laws  of  the  United  States,  or  to  resist 
the  exercise  of  aiiy  legitimate  authority  of  the  government." 

"  Levying  war  embraces  .  .  .  any  combination  forcibly  to  prevent 
or  oppose  the  execution  ...  of  a  public  statute,  if  accompanied  or 
followed  by  an  act  of  forcible  opposition."  Of  course  the  court  is  to 
determine  the  meaning  of  force;  and  using  the  same  latitude  of  con- 
struction as  in  interpreting  levying  ivar,  it  would  mean,  a  ivord,  a  look, 
a  thought,  a  ivish,  a.  fancy  even. 

Mr.  Ludlow  enforced  the  same  opinions,  relying  in  part  on  the  old 
tyrannical  decisions  of  the  British  courts  in  the  ages  of  despotism, 
and  on  the  opinion  of  Judge  Chase  —  who  had  derived  his  law  of 
treason  from  that  source,  and  was  impeached  before  the  American 
Senate  for  his  oppressive  conduct  while  judge  in  the  very  trials 
whence  these  iniquitous  doctrines  were  derived!  But  Mr.  Ludlow 
says  "  if  a  spurious  doctrine  have  been  introduced  into  the  common  laic 
.  .  .  it  ivould  require  great  hardihood  in  a  judge  to  reject  it:'  So  the 
jury  must  accept  "a  spurious  doctrine"  as  genuine  law! 

"In  treason,  all  the  parlicipes  criminis  are  principals;  there  are  no 
accessaries  to  this  crime.  Every  act  which  .  .  .  would  render  a  man 
an  accessary  will  .  .  .  make  him  a  principal."  "  If  any  man  joins 
and  acts  with  an  assembly  of  people,  his  intent  is  always  to  be  con- 
sidered .  .  .  the  same  as  theirs  ;  the  laiv  .  .  .  judgeth  of  the  intent  by 
the  Fact."     This  was  Judge  Kelyng's  "  law." 

"  It  may  be  .  .  .  advanced  that  because  Hanway  was  not  armed, 
he  was  not  guilty.  It  is  perfectly  well  settled  that  arms  are  not  neces- 
sary." "  Military  weapons  .  .  .  are  not  necessary  ...  to  a  levying 
war."  "  This  is  the  opinion  of  Judge  Chase,"  and  "  it  may  be  alleged 
that  Judge  Chase  was  impeached,  and  that  [therefore]  his  opinions 
are  of  little  weight.  Whatever  may  have  been  the  grounds  of  that 
impeachment,  it  is  not  for  us  to  discuss." 

12* 


138  UNITED    STATES   VS.   THEODORE   PARKER. 

"  If  a  body  of  men  be  assembled  for  the  purpose  of  effecting  a 
treasonable  object  [that  is,  '  to  oppose  the  execution  of  a  public  stat- 
ute,' no  matter  what  or  how]  all  those  luho  perform  any  part,  however 
minute,  or  however  remote  from  the  scene  of  action  .  .  .  are  equally 
traitors." 

]Mr.  Brent,  the  Maryland  State  Attorney,  whom  Mr.  Webster  had 
sent  there,  declared  that  "  any  combination  like  this,  of  colored  and 
white  persons,  to  prevent  the  execution  of  the  Fugitive  Slave  Law,  is 
treason.''^ 

Mr.  Cooper,  the  Pennsylvania  Senator,  adds, "  Castner  Hanway  .  .  . 
having  been  present  ...  at  the  time  the  overt  act  was  committed,  he 
is  a  principal  .  .  .  provided  he  was  there  aiding  and  abetting  the  ob- 
jects of  the  confederated  parties."  '■'■Persons  procuring,  contriving,  or 
consenting,  come  within  the  words  aid  and  abet."  So  "  if  he  encour- 
ages, assists,  or  consents  to  the  act,  it  is  enough  ;  he  becomes  at  once  an 
aider  and  abettor,  and  obnoxious  to  all  the  pains  and  penalties  de- 
nounced against  it.''''  "  If  persons  do  assemble  themselves  and  act  with 
some  force  in  opposition  to  some  law  .  .  .  and  hope  thereby  to  get  it 
repealed,  this  is  a  levying  war  and  high  treason.'"  That  is,  an  assem- 
bly of  men  acting  against  any  law,  with  any  force  of  argument,  in 
order  to  procure  its  repeal,  levies  war  and  is  guilty  of  treason ! 

To  connect  Mr.  Hanway  with  this  constructive  treason,  the  govern- 
ment relied  on  the  evidence  of  Mr.  Kline,  the  Deputy  Marshal  of  the 
court,  a  man  like  Mr.  Butman  and  Mr.  Patrick  Riley,  so  well  known 
in  this  court,  and  so  conspicuous  for  courage  and  general  elevation  of 
character.  Witnesses  testified  that  Kline  was  so  much  addicted  to 
falsehood  that  they  would  not  believe  him  on  oath,  —  but  what  of 
that?  He  had  "conquered  his  prejudices."  It  appeared  that  Mr. 
Hanway  went  to  the  scene  of  action  on  a  sorrel  horse,  in  his  shirt- 
sleeves, with  a  felt  hat  on,  and  did  not  join  the  Deputy  in  attempting 
to  kidnap  when  commanded.  Hear  how  Mr.  Ludlow  constructs  levy- 
ing war  out  of  the  disobedience  of  a  non-resistant  Quaker  in  a  felt 
hat  and  shirt-sleeves,  mounted  on  a  sorrel  horse !  Hearken  to  this 
voice  of  the  government :  — 

"  Suddenly  he  sees  the  assembled  band  of  infuriated  men  .  .  .  Does  he  leave  the 
spot?  No,  Sir!  Does  he  restrain  the  negroes?  Take  the  evidence  for  tlie  defence 
in  its  fullest  latitude,  and  you  will  perceive  he  raised  the  feeble  cry,  '  Don't  shoot!  for 
fjod's  sake  don't  shoot !' and  there  it  ended.  Is  that  consistent  with  innocence?  .  .  . 
according  to  their  own  evidence  the  conclusion  is  irresistible  that  he  was  not  innocent." 

"  But  he  does  more  than  this."  When  summoned  by  the  Deputy 
to  steal  a  rn;ui  "  Ik;  is  thrown  ofF  liis  guard,  and  exclaims,  '  I  will  not 
assist   you ; '  'he  allowed  the  colored  people  had  a  right  to  defend 


REV.   DR.   WADSWORTIl'S   TUANKSGIVING    SERMON.  139 

themselves.'  '  lie  did  not  care  for  that  Act  of  Congress  or  any  other 
Act  o"f  Congress.' " 

And  so  with  his  unsaddled  sorrel  nag  this  non-resistant  miller 
levies  war  upon  the  United  States  by  crying  "Don't  fire,"  and  com- 
mits treason  by  the  force  and  arms  of  a  broad-brimmed  Quaker  hat. 
"  The  smallest  amount  of  force  is  sufficient,"  "  military  weapons  are 
not  necessary  to  levy  war  ! " 

Mr.  Brent  thought  if  Mr.  Hanway  was  not  hanged  it  would  appear 
that  a  "small  and  miserable  and  traitorous  faction  can  resist  and 
annul  the  laws  of  the  United  States."  "  Pat  down  these  factions 
[the  Free-Soil  Party,  the  Liberty  Party,  the  Anti-Slavery  Societies], 
overwhelm  them  with  shame,  disgrace,  and  ruin,  or  you  are  not  good 
citizens  fulfilling  the  bonds  that  bind  you  to  us  of  the  South." 

The  government  Attorney  declared  that  Mr.  Hanway  and  others 

"  Had  no  right  to  refuse  to  assist  because  it  was  repugnant  to  their  consciences. 
Conscience!  Conscience  .  .  .  is  the  pretended  justification  for  an  American  citizen  to 
refuse  to  execute  a  law  of  his  country."  "  Dcnnnahle,  treasonable  doctrine."  "  He  has 
become  a  (;onspirator,  he  has  connected  himself  with  them,  and  all  their  acts  are  bis 
acts,  and  all  their  intentions  arc  his  intentions." 

"  The  whole  neighborhood  was  not  only  disloyal,  but  wanting  in  common  humanity:" 
"  the  whole  region  is  infected,"  "  in  that  horde  of  traitors ;"  "a  whole  county,  a  whole 
township,  a  whole  neighborhood  are  involved  in  plottin  '  treason."  "  When  you  see 
these  things  can  you  not  infer  .  .  .  that  he  icent  there  by  pre-arranrjement !  "  "  When 
you  see  a  man  .  .  .  not  saying  one  word  to  save  his  dear  colored  friends  from  the  guilt 
of  murder,  I  say  it  is  passing  human  credulity  to  say  that  30U  cannot  Infer  in  all  that 
a  feeling  of  hostility  to  the  law,  and  an  intention  to  7-esist  it." 

"  The  consequences  [of  the  verdict]  are  not  with  the  jury:"  the  responsibility  will 
not  be  with  you  —  j'ou  are  not  responsible  for  those  just  consequences." 

"  When  you  allege  that  a  master  has  come  into  Pennsylvania  and  illegally  seized  and 
possessed  himself  of  his  slave  without  process,  you  are  to  inquire,  '  flas  he  done  that 
which  he  had  authority  to  do  in  his  own  State  ?  '  You  are  to  look  to  the  laws  of  his 
own  State:  for  the  Supreme  Court  says,^  'He  has  the  same  right  to  7'epossess  his  slave 
here  as  in  his  oivn  Stale.'"  "  He  who  employs  a  man  said  to  have  come  from  ISIaryland 
without  being  satisfied  of  his  freedom,  is  himself  guilty  of  the  first  wrong." 

Senator  Cooper  closed  for  the  government.  Law  was  not  enough 
for  him  ;  he  would  have  the  sanction  of  "  Religion  "  also.  So  he  read 
extract  from  a  Sermon.  Gentlemen  of  the  Jury,  you  have  not 
had  the  benefit  of  Rev.  Dr.  Adams's  prayers  in  this  court ;  it  is  a 
pity  you  should  not  be  blessed  with  the  theology  of  despotism  ;  listen 
therefore  to  the  "  Thanksgiving  Sermon  "  of  Rev.  Dr.  Wadsworth, 
which  Hon.  Mr.  Cooper  read  to  the  Jury  in  Independence  Hall. 

"  For  passing  by  all  other  causes  of  irritation  as  just  now  secondary  and  subordinate, 
look  for  a  moment,  at  the  inlliience  which  the  Gospel  of  Christ  would  have  In  this  great 
sectional  controversy  about  slavery. 

1  16  Peters,  Trigg  v.  Penn. 


140  UNITED    STATES   VS.   THEODORE   PARKER. 

"First,  It  -would  say  to  the  Northern  fanatic,  who  vapors  about  man-stealing  as  if 
there  were  no  other  evil  under  the  sun  but  this  one  evil  of  Slavery —  it  wouldsay  to 
him.  Emulate  the  sjjirit  of  your  blessed  Master  and  his  apostles,  who,  against  this  very 
evil  [man-stealing]  in  their  own  times,  brought  no  railing  accusation  ;  but  in  one  in- 
stance at  least,  sent  back  a  fugitive  from  the  household  of  Philemon. 

"  In  treating  Southern  Christian  slaveholders  with  Christian  courtesy,  and  sending 
hack  their  fugitives  Avhen  apprehended  among  you,  you  neither  indorse  the  system  nor 
partake  of  its  evil ;  you  are  only  performing  In  good  faith  the  agreement,  and  redeem- 
ing the  pledges  of  your  forefathers,  and  leaving  to  each  man  for  himself  to  answer  for 
his  own  acts  at  the  judgment-seat  o'  Jesus.  It  would  tear  away  from  the  man,  as  the 
foulest  cloak  of  hypocrisy,  that  pretence  of  a  religious  principle  in  this  whole  matter 
of  political  abolitionism.  . 

"  Religious  principle!  Oh  my  God!  That  religious  principle,  that  for  the  sake  of 
an  abstract  right  whose  very  exercise  were  disastrous  to  the  unprepared  bondmen  who 
inherit  it,  would  tear  this  blest  confederacy  in  pieces,  and  deluge  these  smiling  plains 
in  fraternal  blood,  and  barter  the  loftiest  freedom  that  the  world  ever  saw,  for  the 
armed  despotism  of  a  great  civil  warfare  !  That  religious  principle  which,  in  disaster 
to  man's  last  great  experiment,  would  fling  the  whole  race  back  into  the  gloom  of  an 
older  barbarism  —  rearing  out  of  the  ruin  of  these  free  homes,  the  thrones  of  a  more 
adamantine  despotism  —  freedom's  beacons  all  extinguished,  and  the  whole  race  slaves. 
That  religious  principle  through  which,  losing  sight  of  God's  great  purpose  of  evangeliz- 
ing the  nations,  [by  American  Slavery,]  would  shatter  the  mightiest  wheel  In  the 
mechanism  of  salvation,  and  palsy  the  wing  of  God's  preaching  angel  in  its  flight 
through  the  skies. 

"Alas  —  alas!  ye  that  count  as  little  this  bond  of  blessed  brotherhood,  wrought  by 
our  fathers'  mighty  hands  and  bleeding  hearts  —  we  tell  you,  sorrowing  and  in  tears, 
that  your  pretence  is  foul  hypocrisy.  Ye  have  reversed  the  first  precept  of  the  gospel, 
for  your  wisdom  Is  a  dove's,  and  j'our  harmlessness  a  serpent's.  Ye  have  not  the  frst 
principle  within  you,  either  of  religion  or  philanthropy,  or  common  human  benevolence. 
Your  principle  is  the  principle  of  Judas  Iscariot,  and  with  the  doom  of  the  traitor  ye 
shall  go  to  your  own  place." 

"No,  Sir — no,  Sir,"  concludes  the  Senator  thirsting  for  his  con- 
stituent's blood,  "'There  is  no  gospel  in  all  this  treasonable  fanati- 
cism —  for  treason  to  my  country  is  rebellion  to  my  God.'  " 

Judge  Grier  charged  the  Jury;  —  but  as  lie  struck  out  from  the 
pho nog- r cipher'' s  report  —  of  which  the  proof-sheets  were  sent  to  him  — 
the  most  offensive  portion,  Gentlemen  of  the  Jury,  I  shall  not  be  able 
to  enlighten  you  with  all  the  legal  words  of  this  "  consummate  judge." 
So  be  content  with  the  following  Elegant  Extracts. 

"  "With  the  exception  of  a  few  individuals  of  perverted  Intellect  in  some  small  dis- 
tricts or  neighborhoods  whose;  moral  atmosphere  has  been  tainted  and  poisoned  by  male 
and  female  vagrant  lecturers  and  conventions,  no  party  in  jwlltlcs,  no  sect  of  religion, 
or  any  respectalile  numbers  or  character  can  be  found  within  our  borders,  who  have 
viewc'l  with  aji[)r()l)atioii  or  have  looked  with  any  other  than  fci'lings  of  abhorrence 
upon  liiia  disgraceful  tragedy." 

"It  is  not  in  this  Hall  of  IrHlcjx'ndcncc.  that  meetings  of  infuriated  fanatics  and  un- 
princij)I('d  demagogues  have  iu-cn  iicld  to  counsel  a  bloody  resistance  to  the  laws  of  the 
land.     It  is  not  in  this  city  that  conventions  are  held  denouncing  the  Constitution,  the 


GRIEIl'S    CHARGE    TO    THE   JURY.  141 

Laws,  and  tlie  Bible.  It  is  not  here  that  the  puljjit  lias  been  desecrated  by  seditious 
exhortations,  teaching  that  tlicf't  [a  man  stealing  his  own  limbs  and  person  from  his 
'  lawful  owner']  is  meritorious,  murder  [in  self-defence  killing  a  man-stealer]  excusa- 
ble, and  treason  [opposition  to  the  fugitive  slave  bill]  a  virtue!  " 

"  The  guilt  of  this  foul  murder  [the  shooting  of  a  kidnapper  by  the  nu-n  whom  he 
intended  for  his  victims,  and  whose  premises  he  invaded  without  due  process  of  law, 
and  with  armed  force],  rests  not  alone  on  the  deluded  individuals  who  were  its  imme- 
diate perpetrators,  but  the  blood  taints  with  even  deeper  dye  the  skirts  of  those  who 
pronmlgated  doctrines  subversive  of  all  morality  and  all  government,  [that  is,  of  Slavery 
and  the  fugitive  slave  bill]." 

"  This  murderous  tragedy  is  but  the  necessary  development  of  principles  and  the 
natural  fruit  from  seed  sown  by  others  whom  the  arm  of  the  law  cannot  reach,"  [such 
as  the  Authors  of  the  Declaration  of  Independence,  and  still  more  the  Author  of  the 
"  Sermon  on  the  Mount]." 

"  This  [the  slave  clause  of  the  Constitution]  is  the  Supreme  law  of  the  land,  hind- 
inf)  .  .  .  on  the  conscience  and  conduct  of  every  individual  citizen  of  the  United 
States."  "  The  shout  of  disapprobation  with  which  this  [the  fugitive  slave  bill]  has 
been  received  by  some,  has  been  caused  .  .  .  because  it  is  an  act  which  can  be  exe- 
cuted. .  .  .  the  real  objection  ...  is  to  the  Constitution  itself,  which  is  supposed  to 
be  void  in  this  particular,  from  the  effect  of  some  '  higher  law.'  It  is  true  that  the 
number  of  persons  whose  consciences  affect  to  be  governed  by  such  a  law  [that  is  the 
law  of  Natural  Morality  and  Religion],  is  very  small.  But  there  is  a  much  larger 
number  who  take  up  opinions  on  trust,  —  and  have  concluded  this  must  be  a  very^per- 
nicious  and  unjust  enactment,  for  no  other  reason  than  because  the  others  shout  their 
disapprobation  with  such  violence  and  vituperation." 

"  This  law  is  Constitutional."  "  The  question  of  its  Constitutionality  is  to  be  settled 
by  the  Courts,  [fugitive  slave  bill  courts,]  and  not  by  conventions  either  of  laymen  or 
ecclesiastics."  "  We  are  as  much  bound  to  support  this  law  as  any  other."  "  The  jury 
should  regard  the  construction  of  the  Constitution  as  giVen  them  by  the  court  as  to 
•what  is  the  true  meaning  of  the  Avords  levying  war."  "  In  treason  all  are  principals, 
and  a  man  may  be  guilty  of  aiding  and  abetting,  though  not  present." 

He  spoke  of  those  "  associations,  or  conventions,  which  occasion- 
ally or  annually  infest  the  neighboring  village  of  West- Chester,  for 
the  purpose  of  railing  at  and  resisting  the  Constitution  and  laws  of 
the  land  [that  is  the  fugitive  slave  bill  and  other  laws  which  annihi- 
late a  man's  unalienable  right  to  his  liberty],  and  denouncing  those 
who  execute  them  as  no  better  than  a  Scroggs  or  a  Jeffries; — who 
stimulate  and  exhort  poor  negroes  to  the  perpetration  of  offences 
which  they  know  must  bring  them  to  the  penitentiary  or  the  gal- 
lows." 

But  he  thought  refusing  to  aid  the  deputy  marshal  in  kidnapping 
was  not  an  act  of  levying  war,  or  treason  against  the  United  States. 
"  In  so  doing  he  is  not  acting  the  part  of  an  honest,  loyal  citizen  [who 
ought  to  do  any  wickedness  which  a  bum-bailiff  commands]  ;  he  may 
be  liable  to  be  punished  for  a  misdemeanor  for  his  refusal  to  interfered 

But  he  thought  the  government  was  right  "  In  procuring  an  indictment  for  Treason." 
For  "  meetings  had  been  held  in  many  places  in  the  North,  denouncing  the  law,  and 


142  UNITED    STATES    VS.    THEODORE    PARKER. 

advising  a  traitorous  resistance  to  its  execution  :  conventions  of  infuriated  fanatics  had 
invited  to  acts  of  rebellion;  and  even  the  pulpit  had  been  defiled  with  furious  denun- 
ciations of  the  law,  and  exhortations  to  a  rebellious  resistance  to  it. 

",The  government  was  perfectly  justified  in  supposing  that  this  transaction  was  but 
the  first  overt  act  of  a  treasonable  conspiracy,  extending  over  many  of  the  Northern 
States,  to  resist  by  force  of  arms  the  execution  of  this  article  of  the  Constitution  and 
the  laws  framed  in  pursuance  of  it.  In  making  these  arrests,  and  having  this  investi- 
gation, the  officers  of  government  have  done  no  more  than  their  strict  duty. 

The  activity,  zeal,  and  ability,  which  have  been  exhibited  by  the  learned  Attorney 
of  the  United  States,  in  endeavoring  to  bring  to  condign  punishment  the  perpetrators 
of  this  gross  offence,  are  deserving  of  all  praise.  It  has  (jioen  great  satisfaction  to  the 
Court  also,  that  the  learned  Attorney-General  of  Maryland,  and  the  very  able  counsel 
associated  icilh  him  [Senator  Cooper  of  Pennsylvania]  have  taken  jxirt  in  this  prosecu- 
tion." 

In    about   fifteen    minutes    the   Jury    returned    a    verdict    of  NOT 

GUILTY."  1 


(4.)  On  the  29th  of  April,  1852,  a  man  named  William  Smith 
was  arrested  by  Commissioner  McAllister  of  Columbia,  Pennsyl- 
vania, on  complaint  of  one  Ridgeley  of  Baltimore.  While  in  the 
custody  of  the  officers.  Smith  endeavored  to  escape,  and  Ridgeley 
drew  a  pistol  and  shot  him  dead.  The  murderer  escaped.  No  seri- 
ous efforts  were  made  by  the  State  authorities  to  bring  that  offender 
to  justice.  "  He  has  the  same  right  to  repossess  his  slave  here  as  in 
his  own  State ; "  the  "same  right  to  kill  him  if  he  attempts  to 
escape!  Mr.  Toombs  is  modest  —  but  we  shall  soon  see  the  slave- 
holder not  only  sit  down  with  his  slaves  at  the  foot  of  Bunker  Hill 
Monument,  but  shoot  them  if  they  attempt  to  run  away  !  Nay,  Gen- 
tlemen, we  shall  see  this  Court  defending  the  slave-hunter's  "  privi- 
lege." 

(5.)  Here  is  another  case.  Gentlemen  of  the  Jury,  in  which  this  same 
Judge  Grier  appears,  and  with  his  usual  humanity.  This  is  a  brief 
account  of  the  case  of  Daniel  Kauif'man.  In  1852  he  allowed  a  party 
of  fugitive  slaves  to  pass  the  night  in  his  barn,  and  gave  them  food 
in  the  morning.  For  this  he  was  brought  before  Judge  Grier's  court 
and  fin(,'d  $;  2,800!  It  was  more  than  his  entire  property.  Gentle- 
men, there  are  persons  in  this  room  who  gave  money  to  Mr.  Kauff- 
man,  to  indemnify  him  for  his  losses;  were  not  they  also  guilty  of 
treason,  at  least  of  a  "  misdcuneanor?  "  They  "evinced  an  express 
liking  "  for  Freedom  and  Humanity,  not  Slavery  and  bloodshed. 

(0.)  Hut  hrrc  is  yet  one  more,  —  which  you  shall  have  in  the  lan- 
guage of  another:  — 


'  Sec  Report  of  Trial  of  Castncr  Ilanway,  Thi].  1852. 


JUSTICE   OF   THE   ■\VISCONSIN   COURT. 

"  In  a  case  of  attemi)ted  Slavo-catching  at  Wilkesbarre,  in  Pcnnsyl 
Deputy  Marshal,  Wyneoop  and  his  assistants,  had  Ijuhaved  with  such  atrocious  and 
abominable  cruelty,  that  the  citizens  felt  that  justice  demanded  their  punishment  for 
the  outrage.  They  were,  accordingly,  arrested  on  a  warrant  issued  by  a  most  respect- 
able magistrate,  on  the  oath  of  one  of  the  principal  iidiabitants  of  the  place.  A  writ 
of  habeas  corpus  was  forthwith  sued  out,  returnable  before  Judge  Grier.  When  the 
District  Attorney,  Ashniead,  moved  the  discharge  of  the  relators,  (which,  it  is  need- 
less to  say,  was  ordered,)  Juilge  Grier  delivered  himself  to  the  following  cifect.  "If 
hubeaa  corpuses  are  to  be  taken  out  after  that  manner,  I  will  hare  an  indictment  sent  to 
ike  United  States  Grand-Jury  ufjainst  the  peison  tcho  applies  for  the  writ,  or  assists  in 
gsttimj  it,  the  lawyer  loho  defends  it,  and  the  sherij/'  who  serves  the  lorit,  to  see  whether 
the  United  States  officers  are  to  be  arrested  and  harassed  Avhencvcr  they  atteun)t  to 
serve  a  process  of  the  United  States." 

2.  Gentlemen  of  the  Jury,  you  might  suppose  that  love  of  liberty 
had  altogether  vanished  from  the  "  Free"  States,  else  how  could  such 
men  ride  over  the  local  law  as  well  aa  natural  justice?  But  lam 
happy  to  find  one  case  where  the  wickedness  of  the  fugitive  slave  bill 
courts  was  resisted  by  the  people  and  the  local  judges  — it  is  a  soli- 
tary case,  and  occurred  in  Wisconsin  :  — 

"  About  the  middle  of  March,  1854,  a  man  named  Joshua  Glover,  was  seized  near 
Racine,  in  Wisconsin,  as  a  Fugitive  Slave.  His  arrest  was  marked  by  the  circum- 
stances of  cruelty  and  cowardice  which  seem  to  be  essential  to  the  execution  of  this 
Law  above  all  others.  lie  was  brought,  chained  and  bleeding,  to  Milwaukee,  where 
he  was  lodged  in  jail.  As  soon  as  the  news  spread,  an  indignation,  as  general  as  it 
Avas  righteous,  prevailed  throughout  the  city.  A  public  meeting  was  forthwith  called, 
and  held  in  the  open  air,  at  which  several  of  the  principal  citizens  assisted.  Stirring 
speeches  were  made,  and  strong  resolutions  passed,  to  the  effect  that  the  rights  of  the 
man  should  be  asserted  and  defended  to  the  utmost.  Counsel  learned  in  the  law 
volunteered,  and  all  necessary  process  was  issued,  as  well  against  the  claimant  for  the 
assault  and  battery,  as  in  behalf  of  the  man  restrained  of  his  liberty.  A  vigilance 
committee  was  appointed  to  see  that  Glover  was  not  secretly  hurried  off,  and  the  bells 
were  ordered  to  be  rung  in  case  any  such  attempt  should  be  made.  But  the  people  were 
not  disposed  to  trust  to  the  operation  of  the  Slave  Law,  administered  by  United  States 
Judges  or  Commissioners,  and  they  stepped  in  and  settled  the  question  for  themselves 
in  a  sunamary  manner.  A  hundred  men  arrived,  in  the  afternoon,  from  Racine,  the 
town  from  which  the  man  had  been  kidnapped,  who  marched  in  order  to  the  jail. 
They  were  soon  reinforced  by  multitudes  more,  and  a  formal  demand  was  made  for 
the  slave.  This  being  denied,  an  attack  was  made  upon  the  door,  which  was  soon 
broken  in,  the  man  released,  and  carried  back  in  triumph  to  Racine,  whence  he  was 
afterwards  conveyed  beyond  the  jurisdiction  of  the  star-spangled  banner.  A  mass 
convention  of  the  citizens  of  Wisconsin  was  afterwards  held  to  provide  for  similar 
cases,  should  they  occur,  and  a  most  sound  and  healthy  tone  of  feeling  appears  to  have 
pervaded  that  youthful  commonwealth. 

"  After  the  rescue  had  been  effected,  the  United  States  Marshal  arrested  several 
persons  for  the  offence  of  resisting  an  officer  in  the  discharge  of  his  duties.  Among 
these  was  Mr.  Sherman  M.  Booth,  the  editor  of  the  Free  Democrat.  When  brought 
before  a  Commissioner,  in  the  custody  of  the  INIarshal,  a  writ  of  habeas  corpus  was 
sued  out  on  his  behalf,  and  he  was  brought  before  Judge  A.  D.  Smith,  of  the  Supreme 
Court.     After  a  full  hearing,  Judge  Smith  granted  him  his  discharge,  on  the  ground 


144  UNITED    STATES   VS.   THEODORE   PARKER. 

that  the  fugitive  slave  law  was  unconstitutional.  The  Marshal  then  had  the  proceed- 
ings removed  by  a  writ  of  certiorari  before  a  full  bench  of  the  Supreme  Court,  when 
the  decision  of  Judge  Smith  was  confirmed,  and  Mr.  Booth  discharged  from  custody. 
Immediately  afterwards,  Judge  Miller,  of  the  United  States  District  Court,  issued 
another  warrant  for  the  arrest  of  Mr.  Booth,  making  no  mention  of  the  fugitive  slave 
act,  but  directing  his  arrest  to  answer  to  a  charge  for  abetting  the  escape  of  a  prisoner 
from  the  custody  of  the  United  States  Marshal.  Another  writ  of  habeas  corpus  was 
sued  out,  but  it  was  denied  by  the  Supreme  Court,  on  the  ground  that  there  was 
nothing  on  the  face  of  the  record  to  bring  it  within  range  of  their  former  decision." 

"  In  the  mean  time  the  United  States  Judge  and  Marshal  were  busy  in  their  voca- 
tion. It  is  affirmed  that  the  Grand-Jury  was  packed  in  the  most  unblushing  manner, 
until  an  inquest  was  made  up  that  would  answer  the  purpose  of  the  Government. 
However  this  may  have  been,  indictments  were  found  in  the  District  Co^irt,  against 
]\Ir.  Booth  and  several  other  persons.  A  petty  Jury  selected  with  the  same  care  that 
had  been  bestowed  on  the  composition  of  the  Grand-Jury,  convicted  Mr.  Booth  and 
Mr.  Ryecraft.  All  the  weight  of  the  government  was  thrown  against  the  defendants. 
Special  counsel  were  retained  to  assist  the  District  Attorney,  the  intructions  of  the 
Court  were  precise  and  definite  against  them;  all  motions  in  their  behalf  resting  on  the 
irregularities  and  injustices  of  the  proceedings  were  overruled.  So  were  all  motions 
subsequent  to  the  conviction  for  an  arrest  of  judgment.  They  were  sentenced  to  fine 
and  imprisonment  —  Mr.  Booth  to  pay  one  thousand  dollars  and  costs,  and  to  be 
imprisoned  one  month,  and  Mr.  Ryecraft  to  pay  two  hundred  dollars,  and  to  be 
imprisoned  for  ten  days.  On  these  sentences  they  were  committed  to  jail.  The  pub- 
lic excitement  in  Milwaukee,  and  throughout  the  State,  was  intense.  It  was  with 
difficulty  that  the  people  could  be  restrained  from  forcibly  liberating  the  prisoners. 
Fortunately  there  was  no  occasion  for  any  such  extreme  measures.  They  found  pro- 
tection, where  it  ought  to  be  found,  in  the  constituted  authorities  of  their  State.  A 
writ  of  habeas  corpus  was  issued  in  their  behalf  by  the  Supreme  Court,  then  sitting  at 
jNIadison,  the  Capital  of  the  State,  returnable  before  them  there.  Escorted  by  two 
thousand  of  their  fellow-citizens,  thither,  in  charge  of  the  High  Sheriff,  they  had  a 
hearing  at  once.  After  full  deliberation,  the  Court  unanimously  ordered  them  to  be 
discharged.  The  majority  of  the  Court  made  this  decision  on  the  ground  of  the  uncon- 
stitutionality of  the  fugitive  slave  law,  one  Judge  (Crawford)  sustaining  the  law,  but 
concurring  in  the  order  on  the  ground  that  no  oflTence,  under  that  Act,  was  charged 
in  the  indictment.     So  the  prisoners  were  discharged,  and  brought  home  in  triumph." 

Gentlemen,  that  matter  will  be  carried  up  to  the  Supreme  Court  of 
the  United  States,  and  you  may  yet  hear  the  opinion  of  the  Hon. 
Associate  Justice  Curtis,  for  which  let  us  wait  with  becoming  rev- 
erence. 

3.  Here  is  the  case  of  Mr.  Sloanc,  which  happened  in  the  State  of 
Ohio. 

In  October,  1852,  several  colored  persons  were  about  leaving  San- 
dusky ill  a  steamer  for  Detroit,  when  they  were  seized  and  taken  be- 
fore Mr.  Follet,  mayor  of  the  city,  and  claimed  as  fugitive  slaves. 
This  seizure  was  made  by  the  city  marshal  and  three  persons  claim- 
ing to  act  for  Ihc  owners  of  the  slaves. 

Afler  the  colored  persons  were  brought  before  the  mayor,  their 
friends  engaged  Mr.  Rush  11.  Sloane  to  act  as  counsel  in  their  defence. 


"misdemeanor"    of   MR.    SLOANE.  145 

He  demanded  of  the  mayor  and  the  claimants  by  what  authority  the 
prisoners  were  detained.  There  was  no  reply.  He  then  asked, 
whether  they  were  in  the  custody  of  a  United  States  Marshal  or 
Commissioner.  Again  there  was  no  reply.  He  next  called  for  any 
writs,  papers,  or  evidences  by  which  they  were  detained.  Still  there 
was  no  answer.  He  then  said  to  his  clients,  ^'' I  see  no  authority  to 
detain  your  colored  friendsP 

At  that  time  some  one  near  the  door  cried  out,  "  Hustle  them  out," 
and  soon  the  crowd  and  the  alleged  fugitives  were  in  the  street. 
Then  one  of  the  claimants  said  to  Mr.  Sloane,  "  I  own  these  slaves ; 
they  are  my  property,  and  I  shall  hold  you  individually  liable  for 
their  escape."  These  were  the  first  and  only  ivords  he  spoke  to  Mr. 
Sloane,  and  then  not  until  the  black  men  were  in  the  street. 

In  due  time  Mr.  Sloane  was  arrested  for  resisting  the  execution  of 
the  fugitive  slave  bill,  though  he  had  only  acted  as  legal  counsel  for 
the  alleged  slaves  and  had  offered  no  resistance  to  the  law,  by  deed,  or 
ivord,  or  sign. 

He  was  brought  to  trial  at  Columbus.  Before  the  jurors  were 
sworn  they  were  all  asked  "whether  they  had  any  conscientious 
scruples  against  the  fugitive  slave  law,  and  would  hesitate  to  convict 
under  it."  If  they  said  "  Yes,"  they  were  rejected.  Thus  a  jury 
was  packed  for  the  purpose,  and  the  trial  went  on.  Thirteen  unim- 
peached  witnesses  deposed  to  the  facts  stated  before,  while  the  slave 
claimant  had  no  evidence  but  the  city  marshal  of  Sandusky  —  the 
Tukey  of  that  place  —  and  two  of  the  three  slave-catchers  — who  swore 
that  they  had  with  them  powers  of  attorney  for  the  seizure  of  twenty- 
four  slaves. 

Gentlemen,  such  was  the  action  of  the  court,  and  such  the  com- 
plexion of  the  packed  jury,  that  Mr.  Sloane  was  found  "  guilty." 
The  Judge,  Hon.  Mr.  Leavitt,  refused  to  sign  a  bill  of  exceptions,  ena- 
bling him  to  bring  the  matter  before  the  Supreme  Court.  Mr.  Sloane 
was  sentenced  to  pay  a  fine  of  ^3,000,  and  §930  as  costs  of  court  I 
Such  was  the  penalty  for  a  lawyer  telling  his  clients  that  he  saw  no 
authority  to  detain  them,  —  after  having  three  times  demanded  the 
authority,  and  none  had  been  shown  I 

4.  Gentlemen  of  the  Jury,  I  now  come  to  cases  which  have  hap- 
pened in  our  own  State,  —  in  this  city.  Some  alarm  was  felt  as 
soon  as  Mr.  Mason's  fugitive  slave  bill  was  proposed  in  the  Senate. 
But  men  said,  "  No  northern  man  will  support  it.  There  is  much 
smoke  and  no  fire."  But  when  on  the  7th  of  March,  1850,  Mr. 
Webster  adopted  the  bill,  and  promised  to  defend  it  and  the  amend- 
ments to  it,  "with  all  its  provisions  to  the  fullest  extent;"  when  he 
declared  that  Massachusetts  would  execute  the   infamous  measure 

13 


146  UNITED    STATES   VS.   THEODORE   PARKER. 

"  with  alacrity  "  —  then  not  only  alarm  but  indignation  took  posses- 
sion of  northern  breasts.  The  friends  of  Slavery  at  Boston  must  do  all 
in  their  power  to  secure  the  passage  of  the  bill,  the  prosperity  of  its 
adoptive  father,  and  its  ultimate  enforcement  —  the  kidnapping  of 
men  in  Massachusetts.  Here  are  the  measures  resorted  to  for  attain- 
ing this  end. 

i.  A  meeting  was  called  at  the  Revere  House,  that  Mr.  Web- 
ster might  defend  his  scheme  for  stealing  his  constituents  and  put- 
ting himself  into  the  Presidency. 

ii.  A  public  letter  was  written  to  him  approving  of  his  attempts 
to  restore  man-stealing,  and  other  accompaniments  of  slavery,  to  the 
free  States.  This  letter  declared  the  "  deep  obligations  "  of  the  signers 
"for  what  this  speech  has  done  and  is  doing;"  "we  wish  to  thank 
you,"  they  say,  "  for  recalling  us  to  pur  duties  under  the  constitu- 
tion;" "you  have  pointed  out  to  a  whole  people  the  path  of  duty, 
have  convinced  the  understanding,  and  touched  the  conscience  of  the 
nation  ;  "  "  we  desire,  therefore,  to  express  to  you  our  entire  concur- 
rence in  the  sentiments  of  your  speech."  This  letter  was  dated  at 
Boston,  March  25th,  1850,  and  received  987  signatures,  it  is  said, 
iii.  When  the  bill  became  an  Act  of  government,  a  hundred  can- 
,  nons,  as  I  have  before  stated,  were  fired  on  Boston  Common  in  token 
of  joy  at  the  restoration  of  slavery  to  our  New  England  soil. 

iv.  Articles  were  written  in  the  newspapers  in  defence  of  kid- 
napping, in  justification  of  the  fugitive  slave  bill.  The  Boston 
Courier  and  Boston  Dailij  Advertiser  gave  what  influence  they  had 
in  support  of  that  crirrie  against  America. 

V.  Several  ministers  of  Boston  came  out  and  publicly,  in  sermons 
in  their  own  pulpits,  defended  the  fugitive  slave  bill,  and  called  on 
their  parishioners  to  enforce  the  law  I 

Gentlemen  of  the  Jury,  need  I  tell  you  of  the  feelings  of  the  Phi- 
lanthropists of  Boston,  —  of  the  colored  citizens  who  were  to  be  the 
victims  of  this  new  abomination  !  Within  twenty-four  hours  of  its 
passage  more  than  thirty  citizens  of  Boston,  colored  citizens,  fled  in 
their  peril  to  a  man  whose  delight  it  is  to  undo  the  heavy  burthens 
and  let  the  oppressed  go  free.  While  others  were  firing  their  joyful 
cannon  at  the  prospect  of  kidnapping  their  brothers  and  sisters, 
Francis  Jackson  helped  his  fellow  Christians  into  the  ark  of  Deliver- 
ance which  he  set  afloat  on  that  flood  of  Sin.  Gentlemen,  he  is  here 
to  day  —  he  is  one  of  my  bondsmen.  There  are  the  others  —  this 
venerable  gentleman  [Samuel  May],  this  steadfast  friend  [John  R. 
Manlcy.] 

vi.  it  was  not  long  before  the  kidnappers  came  here  for  their 
pr(;y. 

(I.)    1  must  dwell   a  nioment   on  the  first  attempt.      Gentlemen 


ATTEMPT    TO    KIDNAP    ELLEN    AND    WILLIAM    CRAFT.  147 

of  the  Jury,  you  know  the  story  of  William  and  Ellen  Craft.  They 
were  slaves  in  Georgia;  their  master  was  said  to  be  a  "very  pious 
man,"  "an  excellent  Christian."  Ellen  had  a  little  baby,  —  it  was 
sick  and  ready  to  die.  But  one  day  her  "  owner  "  —  for  this  wife 
and  mother  was  only  a  piece  of  property  —  had  a  dinner  party  at  his 
house.  Ellen  must  leave  her  dying  child  and  wait  upon  the  table. 
She  was  not  [lermitted  to  catch  the  last  sighing  of  her  only  child  with 
her  own  lips  ;  other  and  ruder  hands  must  attend  to  the  mother's  sad 
privilege.  But  the  groans  and  moanings  of  the  dying  child  came  to  her 
ear  and  mingled  with  the  joy  and  merriment  of  the  guests  whom  the 
mother  must  wait  upon.  At  length  the  moanings  all  were  still  —  for 
Death  took  a  North-side  view  of  the  little  boy,  and  the  borh-slave  had 
gone  where  the  servant  is  free  from  his  master  and  the  weary  is  at  rest 
—  for  there  the  wicked  cease  from  troubling.  Ellen  and  William 
resolved  to  flee  to  the  North.  They  cherished  the  plan  for  years ;  he 
was  a  joiner,  and  hired  himself  of  his  owner  for  about  two  hundred 
dollars  a  year.  They  saved  a  little  money,  and  stealthily,  piece  by 
piece,  they  bought  a  suit  of  gentleman's  clothes  to  fit  the  wife ;  no 
two  garments  were  obtained  of  the  same  dealer.  Ellen  disguised 
herself  as  a  man,  William  attending  as  her  servant,  and  so  they  fled 
off  and  came  to  Boston.  No  doubt  these  Hon.  Judges  think  it  was 
a  very  "  immoral "  thing.  Mr.  Curtis  knows  no  morality  here  but 
"legality."  Nay,  it  was  a  wicked  thing  —  for  Mr.  Everett,  a  most 
accomplished  scholar,  and  once  a  Unitarian  minister,  makes  St.  Paul 
command  "  Slaves,  obey  your  masters  I "  Nay,  Hon.  Judge  Sprague 
says  it  is  a  "  precept"  of  our  "  Divine  Master!" 

Ellen  and  William  lived  here  in  Boston,  intelligent,  respected, 
happy.  The  first  blow  of  the  fugitive  slave  bill  must  fall  on  them. 
In  October,  1850,  one  Hughes,  a  jailer  from  Macon,  Georgia,  a  pub- 
lic negro-whipper,  who  had  once  beaten  Ellen's  uncle  "  almost  to 
death,"  came  here  with  one  Knight,  his  attendant,  to  kidnap  Wil- 
liam and  Ellen  Craft.  They  applied  to  Hon.  Mr.  Hallett  for  a  writ. 
Perhaps  they  had  heard  (false)  rumors  that  the  Hon.  Commissioner 
was  "a  little  slippery  in  his  character;"  that  he  was  "not  overscru- 
pulous in  his  conduct ; "  that  he  "  would  do  any  dirty  work  for 
political  preferment."  Gentlemen,  you  know  that  such  rumors  will 
get  abroad,  and  will  be  whispered  of  the  best  of  men.  Of  course 
you  would  never  believe  them  in  this  case :  but  a  kidnapper  from 
Georgia  might;  "distance  lends"  illusion,  as  well  as  "  enchantment,  to 
the  view."  Bat  be  that  as  it  may,  Mr.  Hallett  (in  1850)  appeared  to 
have  too  much  manhood  to  kidnap  a  man.  He  was  better  than  his 
reputation ;  I  mean  his  reputation  with  Knight  and  Hughes,  and 
would  not  (then)  steal  Mr.  and  Mrs.  Craft.  This  is  small  praise ;  it  is 
large  in  comparison  with  the  conduct  of  his  official  brethren.     But 


148  UNITED    STATES    VS.    THEODORE    PARKER. 

for  the  salvation  of  the  Union  another  Commissioner  was  found  who 
had  no  such  scruples.  This  Honorable  Court — Mr.  Woodbury  was 
then  in  the  chief  place,  and  Mr.  Sprague  in  his  present  position  — 
issued  the  writ  of  man-stealing.  Two  gentlemen  of  this  city  were 
eminently,  but  secretly,  active  in  their  attempt  to  kidnap  their  victim. 
I  shall  speak  of  them  by  and  by.  Somebody  took  care  of  Ellen 
Craft.  William  less  needed  help  ;  he  armed  himself  with  pistols  and 
a  poignard,  and  walked  in  the  streets  in  the  face  of  the  sun.  He  was 
a  tall,  brave  man,  and  was  quite  as  cool  then  as  this  Honorable  Court 
is  now,  while  I  relate  their  "  glorious  first  essay  "  in  man-stealing. 
Public  opinion  at  length  drove  the  (southern)  kidnappers  from  Bos- 
ton. Then  the  Crafts  also  left  the  town  and  the  country,  and  found 
in  the  Monarchical  Aristocracy  of  Old  England  what  the  New  Eng- 
land Democracy  refused  to  allow  them  —  protection  of  their  unalien- 
able right  to  Life,  Liberty,  and  the  pursuit  of  Happiness. 

Gentlemen,  the  Evangelists  of  slavery  could  not  allow  a  South- 
ern kidnapper  to  come  to  Boston  and  not  steal  his  man :  they  were 
in  great  wrath  at  the  defeat  of  Hughes  and  Knights.  So  they  pro- 
cured a  meeting  at  Fanueil  Hall  to  make  ready  for  effectual  kidnap- 
ping and  restoring  Slavery  to  Boston.  "  The  great  Union  meeting  " 
was  held  at  Fanueil  Hall  November  26th,  1850,  —  two  days  before 
the  annual  Thanksgiving;  it  was  "a  preparatory  meeting"  to  make 
ready  the  hearts  of  the  People  for  that  dear  New  England  festival 
W'hen  we  thank  God  for  the  Harvest  of  the  Land,  and  the  Harvest  of 
the  Sea,  and  still  more  for  the  State  whose  laws  are  Righteousness, 
and  the  Church  that  offers  us  "  the  Liberty  wherewith  Christ  hath 
made  us  free,"  "  the  glorious  Liberty  of  the  Sons  of  God."  Here  are 
the  Resolutions  which  were  passed. 

"  Resolved,  That  the  preservation  of  the  Constitution  and  the  Union  is  the  para- 
mount duty  of  all  citizens;  —  that  the  blessings  which  have  flowed  from  them  in  times 
past,  which  the  whole  country  is  now  enjoying  under  them,  and  which  we  firmly  be- 
lieve posterity  will  derive  from  them  hereafter,  are  incalculable;  and  that  tliey  vastly 
transcend  in  importance  all  other  political  objects  and  considerations  whatever. 

"  Resolved,  That  it  would  be  folly  to  deny  that  there  has  been  and  still  is  danger  to 
the  existence  of  the  Union,  where  there  is  prevalent  so  much  of  a  spirit  of  disunion, 
constantly  weakening  its  strength  and  alienating  the  minds  of  one  part  of  the  people  of 
the  United  States  from  another;  and  that  if  this  spirit  be  not  checked  and  restrained, 
and  do  not  give  way  to  a  spirit  of  conciliation  and  of  patriotic  devotion  to  the  general 
good  of  the  whole  country,  we  cannot  expect  a  long  continuance  of  the  political  tie 
which  has  hithcrtf)  made  us  one  people ;  but  must  rather  look  to  see  groups  of  rival 
neighboring  rcimljllcs,  whose  existence  will  be  a  state  of  perpetual  conllict  and  open 
war. 

"Resolved,  'J'hat  all  the  provisions  of  the  Constitution  of  the  United  States  —  the 
supreme  law  of  the  land  —  are  equally  binding  upon  every  citizen,  and  upon  every 
State  in  the  Union; — that  all  laws  passed  by  Congress,  in  pursuance  of  the  Consti- 
tution, arc  equally  binding  on  all  the  citizens,  and  no  man  is  at  liberty  to  resist  or  dis- 


"  THE   GREAT   UNION   MEETING  "    AND    MR.    HALLETT.  149 

obey  any  one  constitutional  act  of  Congress  any  more  than  another;  and  that  we  do 
not  desire  or  intend  to  claim  the  l)enefit  of  any  one  of  tlie  powers  or  advantsiges  of  the 
Constitution,  and  to  refuse,  or  seem  to  refuse,  to  perform  any  jiart  of  its  duties,  or  to 
submit  to  an  J'  part  of  its  obligations. 

"  liesolved,  That  the  adjustment  of  the  measures  Avhieh  disturbed  tlie  action  of  Con- 
gress for  nearly  ten  months  of  its  last  session,  ought  to  be  carried  out  by  the  people  of 
the  United  States  in  good  faith,  in  all  the  substantial  provisions ;  because,  although  we 
may  dider  with  each  other  about  the  details  of  those  measures,  yet,  in  our  judgment, 
a  renewed  popular  agitation  of  any  of  the  main  questions  then  settled,  would  be  fraught 
with  new  and  extreme  dangers  to  the  peace  and  harmony  of  the  country,  Avhicli  this 
adjustment  has  happily  restored. 

"  Resolved,  That  every  species  and  form  of  resistance  to  the  execution  of  a  regularly 
enacted  law,  except  by  peaceable  appeal  to  the  regular  action  of  the  judicial  tribunals 
upon  the  question  of  its  constitutionality  —  an  appeal  which  ought  never 'to  be  opposed 
or  impeded  —  is  mischievous,  and  subversive  of  the  first  principles  of  social  order,  and 
tends  to  anarchy  and  bloodshed. 

"  Resolved,  That  men,  who  directly  or  indirectly  instigate  or  encourage  those  who 
are  or  may  be  the  subjects  of  legal  process,  to  offer  violent  resistance  to  the  officers  of 
the  law,  deserve  the  reprehension  of  an  indignant  community,  and  the  severest  pun- 
ishment which  its  laws  have  provided  for  their  oilence  ;  and  that  we  have  entire  confi- 
dence that  any  combination  or  attempt  to  fix  such  a  blot  upon  the  fair  fame  of  our 
State  or  city,  will  be  promptly  rebuked  and  punished,  by  an  independent  and  Impar- 
tial judiciary,  and  by  firm  and  enlightened  juries. 

"  Resolved,  That  we  will  at  all  times,  in  all  places,  and  under  all  circumstances,  so 
far  as  our  acts  or  influence  may  extend,  sustain  the  Federal  Union,  uphold  its  Consti- 
tution, and  enforce  the  duty  of  obedience  to  the  laws." 

A  singular  preparation  for  a  Thanksgiving  clay  in  Boston  !  But  on 
that  festival,  Gentlemen,  three  Unitarian  ministers  thanked  God  that 
the  fugitive  slave  bifl  would  be  kept  in  all  the  land ! 

Several  speeches  were  made  at  the  meeting,  some  by  Whigs,  some 
by  Democrats,  for  it  was  a  "Union  meeting,"  where  Herod  and  Pilate 
were  made  friends.  Gentlemen,  I  must  depart  a  little  from  the  sever- 
ity of  this  defence  and  indulge  you  with  some  of  the  remarks  of  my 
distinguished  opponent,  Hon.  Attorney  Hallett :  then  he  was  merely 
a  lawyer,  and  fugitive  slave  bill  Commissioner,  appointed  "to  take 
bail,  affidavits,"  and  colored  men,  —  he  was  only  an  expectant  At- 
torney. His  speech  was  a  forerunner  of  the  "  Indictment"  which  has 
brought  us  together.  Hearken  to  the  words  of  Mr.  Hallett  in  his 
"  preparatory  lecture  :  "  — 

"  We  can  now  say  that  there  is  no  law  of  the  United  States  which  cannot  be  exe- 
cuted in  INIassachusetts.  If  there  was  any  doubt  before,  there  can  be  no  doubt  now ; 
and  if  there  be  any  wild  enough  hereafter  to  resort  to  a  fancied  '  Higher  Law'  to  put 
down  law  [that  is,  the  fugitive  slave  bill],  they  will  find  in  your  determined  will  a 
stronger  law  to  sustain  all  the  laws  of  tie  United  States."  "  The  threatened  nullifica- 
tion comes  from  Massachusetts  upon  a  law  [the  fugitive  slave  bill]  which  the  whole 
South  insist  is  vval  to  the  protection  of  their  property  and  industry  [much  of  their 
"property"  and  "industry"  being  addicted  to  running  away].  And  shall  Massachu- 
setts mdlify  that  knu?"     "The  question  for  us  to-dav  is  whether  we  will  in  good  fiiith 

13* 


150  UNITED    STATES    VS.   THEODORE   PARKER. 

abide  by,  and  carry  out  these  Peace  treasures  [for  the  rendition  of  fugitive  slaves,  the 
new  establishment  of  Slavery  in  Utah  and  New  Mexico,  and  the  restoration  of  it  to 
all  the  North]  or  whether  we  shall  rush  into  renewed  agitation,"  etc.  "  Resort  is  had 
to  a  new  form  of  moral  treason  which  assumes  by  the  mysterious  power  of  a  '  Higher 
Law'  to  trample  down  all  law  [that  is,  the  fugitive  slave  bill].  Some  of  our  fellow-citi- 
zens have  avowed  that  the  fugitive  slave  bill  is  to  be  treated  like  the  Stamp  Act,  and 
never  to  be  enforced  in  Massachusetts.  If  that  means  any  thing,  it  means  that  -which 
our  flithers  meant  when  they  resisted  the  Stamp  Act  and  threw  the  tea  overboard  — 
Revolution.*  It  [opposition  to  the  fugitive  slave  bill]  is  revolution,  or  it  is  treason.  Jf 
it  only  resists  law,  and  obstructs  its  officers,  it  is  treason  ;  and  he  who  7-isks  it,  must  risk 
hanging  for  it."  - 

Gentlemen,  that  meeting  determined  to  execute  the  fugitive  slave 
bill  "  with  all  its  provisions,  to  the  fullest  extent."  It  is  dreadful  to 
remember  the  articles  in  the  Daily  Advertiser  and  the  Courier  at  that 
period.  Some  of  the  sermons  in  the  Churches  of  Commerce  on  the 
following  Thursday,  Thanksgiving  day,  were  filled  with  the  most 
odious  doctrines  of  practical  atheism.  The  "  preparatory  meeting  " 
had  its  ejffect.  Soon  the  seed  bore  fruit  after  its  kind.  But  some 
ministers  were  faithful  to  their  Brother  and  their  Lord. 

(2.)  February  15th,  1851,  a  colored  man  named  "  Shadrach  "  was 
arrested  under  a  warrant  from  that  Commissioner  who  had  been  so 
active  in  the  attempt  to  kidnap  Mr.  and  Mrs.  Craft.  But  a  "  mira- 
cle" was  wrought:  "where  sin  abounded  Grace  did  much  more 
abound,"  and  "  the  Lord  delivered  him  out  of  their  hands."  Shadrach 
went  free  to  Canada,  w^here  he  is  now  a  useful  citizen.  He  was  res- 
cued by  a  small  number  of  colored  persons  at  lioonday.  The  kid- 
napping Commissioner  telegraphed  to  Mr.  Webster,  "  It  is  levying 
v^-ar  —  it  is  treason."  Another  asked,  "  What  is  to  be  done?"  The 
answer  from  Washington  was,  "  Mr.  Webster  was  very  much  mor- 
tified." 

On  the  ISth,  President  Fillmore,  at  Mr.  Webster's  instigation, 
issued  his  proclamation  calling  on  all  well  disposed  citizens,  and  com- 
matulin<r  all  oj/icers,  "  civil  and  military,  to  aid  and  assist  in  quelling 
this,  and  all  other  such  combinations,  and  to  assist  in  recapturing-  the 
abore-named  person''''  Shadrach.  General  orders  came  down  from 
the  Secretaries  of  War  and  the  Navy,  commanding  the  military  and 
naval  oJ/icers  to  yield  all  practicable  assistance  in  the  event  of  such  an- 
other "  insurrection.^''  The  City  Government  of  Boston  passed  Reso- 
lutions regretting  that  a  man  had  been  saved  from  the  shackles  of 
slavery;   cordially  approving  of  the   President's   proclamation,   and 

'  The  learned  <'ounscl  for  the  fugitive  slave  bill  confounds  two  events.  The  Stamp 
Act  was  passed  March  22(1,  17G5,  and  repealed  the  28th  of  the  next  March.  The  tea 
was  dcstroycil  Dfcfuibcr  10th,  1773. 

'■*  Report  in  itoslon  Courier  of  November  27th,  1850. 


SIIADKACII   AND    SIMS.  151 

promising  their  earnest  efforts  to  carry  out  his  recommendations.  At 
that  time  Hon.  Mr.  Tukey  was  Marshal ;  Hon.  John  P.  Bigelow  was 
Mayor;  Hon.  Henry  J.  Gardner,  a  man  ecjually  remarkable  for  his 
temperance,  truthfulness,  and  general  integrity,  was  President  of  the 
Common  Council. 

It  was  not  long,  Gentlemen,  before  the  City  Government  had  an 
opportunity  to  keep  its  word. 

(3.)  On  the  night  of  the  3d  of  April,  1851,  Thomas  Sims  was  kid- 
napped by  two  police  officers  of  Boston,  pretending  to  arrest  him  for 
theft!  Gentlemen  of  the  Jury,  you  know  the  rest.  He  was  on  trial 
nine  days.  He  never  saw  the  face  of  a  jury,  a  judge  only  once  — 
who  refused  the  Habeas  Corpus,  the  great  "  Writ  of  Right."  That 
judge  —  I  wish  his  successors  may  better  serve  mankind  —  has  gone 
to  his  own  place;  where,  may  God  Almighty  have  mercy  on  his  soul! 
You  remember.  Gentlemen,  the  chains  round  the  Court  House;  the 
Judges  of  your  own  Supreme  Court  crawling  under  the  southern 
chain.  You  do  not  forget  the  "Sims  Brigade"  —  citizen  soldiers 
called  out  and  billeted  in  Faneuil  Hall.  You  recollect  the  Cradle  of 
Liberty  shut  to  a  Free  Soil  Convention,  but  open  to  those  hirelings 
of  the  Slave  Master.  You  will  never  forget  the  Pro-Slavery  Sermons 
that  stained  so  many  Boston  pulpits  on  the  "  Fast-day  "  which  inter- 
vened during  the  mock  trial ! 

Mr.  Sims  had  able  defenders,  —  I  speak  now  only  of  such  as  ap- 
peared on  his  behalf,  others  not  less  noble  and  powerful,  aided  by 
their  unrecorded  service  —  Mr.  Sewall,  Mr.  Rantoul,  men  always  on 
the  side  of  Liberty,  and  one  more  from  whose  subsequent  conduct. 
Gentlemen  of  the  Jury,  I  grieve  to  say  it,  you  would  not  expect  such 
magnanimity  then,  Mr.  Charles  G.  Loring.  But  of  what  avail  was 
all  this  before  such  a  Commissioner?  Thomas  Sims  was  declared 
"  a  chattel  personal  tft  all  intents,  uses,  and  purposes  whatsoever." 
After  it  became  plain  that  he  would  be  decreed  a  slave,  the  poor 
victim  of  Boston  kidnappers  asked  one  boon  of  his  counsel,  "  I  can- 
not go  back  to  Slavery,"  said  he,  "  give  me  a  knife,  and  when  the 
Commissioner  declares  me  a  slave  I  will  stab  myself  to  the  heart,  and 
die  before  his  eyes!  I  will  not  be  a  slave."  The  knife  was  with- 
held !  At  the  darkest  hour  of  the  night  Mayor  Bigelow  and  Marshal 
Tukey,  suitable  companions,  admirably  joined  by  nature  as  by  voca- 
tion, with  two  or  three  hundred  police-men  armed,  some  with  blud- 
geons, some  with  drawn  swords  and  horse  pistols,  took  the  poor  boy 
out  of  his  cell,  chained,  weeping,  and  bore  him  over  the  spot  where, 
on  the  5th  of  March,  1770,  the  British  tyrant  first  shed  New  England 
blood  ;  by  another  spot  where  your  fathers  and  mine  threw  to  the 
ocean  the  taxed  tea  of  the  oppressor.  They  put  him  on  board  a 
vessel,  the  "  J.cor«,"  and  carried  him  off  to  eternal  bondage.     "'  And 


152  UNITED    STATES    VS.    THEODORE   PARKER. 

this  is  Massachusetts  liberty  !  "  said  he,  as  he  stepped  on  board.  Bos- 
ton sent  her  Delegates  to  escort  him  back,  and  on  the  19th  of  April, 
1851,  she  delivered  him  up  to  his  tormentors  in  the  jail  at  Savannah, 
where  he  was  scourged  till  human  nature  could  bear  no  more,  while 
his  captors  were  feasted  at  the  public  cost.  Seventy-six  years  before 
there  was  another  19th  of  April,  also  famous! 

(4.)  Then  came  the  examination  and  "  trial  "  of  the  Shadrach 
Rescuers  in  February  and  the  following  months.  Some  of  these 
trials  took  place  before  his  Honor  Judge  Peleg  Sprague.  Therefore, 
you  will  allow  me,  Gentlemen,  to  refresh  your  memories  with  a  word 
or  two  respecting  the  antecedents  of  this  Judge — his  previous  his- 
tory. 

In  1835  the  abolition  of  Slavery  in  the  British  West  Indies  and 
the  efforts  of  the  friends  of  Freedom  in  the  Northern  States,  excited 
great  alarm  at  the  South,  lest  the  "peculiar  institution"  should  itself 
be  brought  into  peril.  Fear  of  a  "  general  insurrection  of  the  slaves  " 
was  talked  about  and  perhaps  felt.  The  mails  were  opened  in  search 
of  "incendiary  publications;"  a  piano-forte  sent  from  Boston  to  Vir- 
ginia, was  returned  because  the  purchaser  found  an  old  copy  of  the 
"  Emancipator"  in  the  case  which  contained  it.  Public  meetings  for 
the  promotion  of  American  Slavery  were  held.  There  was  one  at 
Boston  in  Faneuil  Hall,  August  21,  1835,  at  which  a  remarkable 
speech  was  made  by  a  lawyer  who  had  graduated  at  Harvard  College 
in  1812,  a  man  no  longer  young,  of  large  talents  and  great  attain- 
ments in  the  law.  He  spoke  against  discussion,  and  in  behalf  of 
Slavery  and  Slaveholders:  he  could  see  no  good,  but  only  unmixed 
evil  "  consequent  upon  agitating  this  subject  here."     He  said  :  — 

"  When  did  fear  ever  induce  a  man  to  relax  his  power  over  the  object  that  excited 
it  ?  Xo,  he  will  hold  him  down  with  a  stronger  grasp,  he  will  draw  the  cords  tighter, 
he  will  make  the  chains  heavier  and  sink  his  victim  to  a  still  deeper  dungeon." 

"The  language  and  measures  of  the  abolitionists  clearly  tend  to  insurrection  and  vio- 
lence." "  They  [the  slaves]  hear  that  their  masters  have  no  legal  or  moral  authority 
over  them.  That  every  moment's  exercise  of  such  dominion  is  sin,  and  that  the  laAvs 
that  sanction  it  are  morally  void :  that  they  are  entitled  to  immediate  emancipation, 
and  that  their  masters  are  to  be  regarded  as  kidnappers  and  robbers  for  refusing  it." 
"  It  is  deluding  these  unfortunate  beings  to  their  own  destruction,  we  should  not  aid 
them.  Tlie  Constitution  provides  for  the  suppressing  of  insurrections  .  .  .  we  should 
respond  to  its  call  [if  tlie  slaves  attempted  to  recover  their  liberty] ;  nay,  we  should 
not  wait  for  such  a  requisition,  but  on  the  instant  should  rush  forward  with  fraternal 
emotions  to  defend  our  brethren  from  desolation  and  massacre." 

"  The  .South  will  not  tolerate  our  interference  with  their  slaves,  [by  our  discussing 
the  matter  h\  the  newspapers  and  elsewhere]."  "  The  Union  then,  if  used  to  disturb 
this  institution  of  Slavery,  will  be  then  as  the  '  spider's  web  ;  a  breath  will  agitate,  a 
blast  will  sweep  it  away  forever.' " 

"  If,  tlien,  these  abolitionists  shall  go  on  .  .  .  the  fate  of  our  government  is  sealed. 
Anil  who  will  attempt  to  fathom  the  immeasurable  abyss  of  a  dissolution  of  the 
Union  V  " 


MR.  SPRAGUE'S  plea  FOR  SLAVERY  IN  1835.  153 

"  Tell  the  abolitionists  this ;  present  to  tliem  in  full  array  the  consequences  of  their 
attempts  at  immediate  emancipation,  and  they  meet  all  by  a  cold  abstraction.  They 
answer,  'He  must  do  r'ujht  regardless  of  canse(juences.' "  "They  assume  that  such  a 
course  [undoing  the  heavy  burthens  and  letting  the  oppressed  go  free,  and  loving  your 
neighbor  as  yourself]  is  right.  When  that  is  the  very  point  in  controversy,  and  when 
inevitable  consequences  demonstrate  that  it  must  be  wrong." 

"  They  [the  abolitionists]  insist  upon  immediate,  instantaneous  emancipation 

No  man,  say  they,  can  be  rightfully  restrained  of  his  liberty  except  for  crime."  "They 
come  to  the  conclusion  that  no  laws  that  sanction  or  uphold  it  [Slavery]  can  have  any 
moral  obligation.  Tlie  Constitution  is  the  Supreme  law  of  the  land.  It  docs  sanction, 
it  docs  uphold  Slavery  ;  and  if  this  doctrine  be  true,  that  sacred  compact  has  always 
been  [so  far]  morally  null  and  void."  "lie  [Washington]  that  Slaveiioldeu  .  .  . 
came  with  other  Slaveholders  to  drive  the  British  myrmicions  from  this  city  and  this 
Hall.  Our  fathers  did  not  refuse  to  hold  communion  with  him  or  with  'them.  With 
Slaveholders  they  formed  the  Confederation  .  .  .  with  them  they  made  the  Declara- 
tion of  Independence."  "  And  in  the  original  draft  of  the  Declaration  was  contained 
a  most  eloquent  jyassage  upon  this  very  topic  of  negro  Slavery,  which  was  stricken  out  in 
deference  to  the  roishes  of  members  from  the  South."  "  Slavery  existed  then  as  now." 
"  Our  fathers  were  not  less  devoted  friends  of  liberty,  not  less  pure  as  j^hilanthropists 
or  pious  as  Christians  than  any  of  their  children  of  the  jiresent  day."  [Therefore  we 
must  not  attempt  to  emancipate  a  slave !] 

Here  is  the  passage  which  the  speaker  thought  it  so  praiseworthy 
in  the  Revolutionary  Congress  to  strike  out  from  the  Declaration  of 
Independence : — 

"  He  [the  king]  has  waged  cruel  war  against  human  nature  itself,  violating 
its  most  sacred  rights  of  life  and  liberty  in  the  persons  of  a  distant  people  who  never 
offended  him,  captivating  and  carrying  them  into  slavery  In  another  hemisjihere,  or  to 
incur  miserable  death  in  their  transportation  thither.  This  piratical  warfare,  the 
opprobrium  of  Infidel  nations,  is  the  warfare  of  the  Christian  King  of  Great 
Britain.  Determined  to  keep  open  a  market  where  Men  should  be  bought  and  sold, 
he  has  prostituted  his  negative  for  suppressing  every  legislative  attempt  to  prohibit  or 
to  restrain  this  execrable  commerce.  And  that  this  assemblage  of  horrors  might  want 
no  fact  of  distinguished  dye,  he  is  now  exciting  those  very  people  to  rise  In  arms 
among  us,  and  to  purchase  that  liberty  of  which  he  has  deprived  them,  by  murdering 
the  people  on  whom  he  also  obtruded  them :  thus  paying  olF  former  crimes  committed 
against  the  Liberties  of  one  people  with  crimes  which  he  urges  them  to  commit 
against  the  Lives  of  another." 

Mr.  Jefferson  says,  "  It  was  struck  out  in  compliance  to  South  Caro' 
Una  and  Geor^ia^  who  had  never  attempted  to  restrain  the  importa- 
tion of  slaves,  and  who,  on  the  contrary,  still  wished  to  continue  it. 
Our  Northern  brethren  also,  I  believe,  felt  a  little  tender  under  it,  for 
though  their  people  have  very  few  slaves  themselves,  yet  they  have 
been  pretty  considerable  carriers  of  them  to  others." 

But  the  orator  went  on  protesting  against  righteousness:  — 

"  I  would  beseech  them  [the  Abolitionists]  to  discard  their  dangerous  abstractions 
[that  men  are  endowed  by  their  Creator  with  certain  natural,  equal,  and  unalienable 


154  UNITED    STATES    VS.    THEODOKE    PARKER. 

Rights  —  to  Life,  Liberty,  and  the  Pursuit  of  Happiness]  which  they  [in  common  with 
the  Declaration  of  Independence]  adopt  as  universal  rules  of  human  conduct — with- 
out regard  to  time,  condition,  or  circumstances;  which,  darken  the  under standbuj  and 
midead  the  judgment,  and  urge  them  forward  to  consecjuences  from  which  they  will 
shrink  back  with  horror.  I  would  ask  them  to  reflect  that  .  .  .  the  religion  they  pro- 
fess is  not  to  be  advanced  by  forgetting  the  precepts  and  the  example  of  their  Divine 
Master.  L^pon  that  example  I  would  ask  them  to  pause.  He  found  Slavery,  Roman 
Slavery,  an  institution  of  the  country  in  which  he  lived.  Did  he  denounce  it  ?  Did 
he  attempt  its  immediate  abolition  ?  Did  he  do  any  thing,  or  say  any  thing  which 
could  in  its  remotest  tendency  encourage  resistance  and  violence  ?  No,  his  precept 
■was,  '  Servants  (Slaves)  obey  your  Masters.' "  ^  "  It  was  because  he  woidd  not  interfere 
with  the  administration  of  the  laws,  or  abrogate  their  authoritij." 

Gentlemen  of  the  Jury,  this  alleged  precept  of  the  "Divine  Master" 
does  not  occur  in  any  one  of  the  four  canonical  Evangelists  of  the 
New  Testament;  nor  have  I  found  it  in  any  of  those  Spurious  and 
Apocryphal  Records  of  old  time.  It  appears  originally  in  the  Gospel 
according  to  the  Hon.  Peleg  Sprague.  "  Slaves,  obey  your  masters," 
"a  comfortable  Scripture"  truly;  a  beatitude  for  the  stealers  of  men  I 

Gentlemen  of  the  Jury,  that  was  the  language  of  Mr.  Peleg 
Sprague  at  the  time  when  the  State  of  Georgia  offered  $5,000  for  the 
head  of  Mr.  Garrison ;  when  the  Governors  of  Virginia  and  other 
Slave  States,  sent  letters  to  the  Governor  of  Massachusetts  asking  for 
"penal  statutes"  to  prohibit  our  discussion  in  Boston;  it  was  the  very 
year  that  a  mob  of  "  Gentlemen  of  Property  and  Standing  "  in  Boston 
broke  up  a  meeting  of  women  assembled  to  endeavor  to  abolish 
Slavery.  Gentlemen  of  the  Jury,  Mr.  Sprague  had  his  reward  — 
he  sits  on  the  bench  to  try  me  for  a  "misdemeanor" — "obstructing, 
resisting,  and  opposing  an  officer  of  the  United  States,"  "  while  in  the 
discharge  of  his  duty"  to  steal  a  man  in  Boston,  that  his  "  owner" 
might  sell  him  in  Richmond.  The  "chief  commandment"  of  the 
New  Testament  is,  "  Slaves,  obey  your  masters;  "  on  that  command- 
ment he  would  now  hang  all  the  law,  and  the  Abolitionists. 

It  would  take  a  long  time  to  tell  the  dark,  sad  tale  of  the  trial  of 
the  Shadrach  Rescuers ;  how  the  Judge  constructed  and  charged 
the  Jury;  how  he  constructed  his  "law."  It  was  the  old  story  of  the 
Stuart  despotism,  wickedness  in  the  name  of  the  law  and  with  its 
forms.  Gentlemen,  in  that  trial  you  saw  the  value  of  the  jury.  The 
Judges  of  Massachusetts  went  under  the  chain  which  the  kidnappers 
placed  about  the  Court  House  in  1851.  The  Federal  Judges  sought  to 
kidnap  the  citizens  of  Boston  and  to  punish  all  sucli  as  opposed  man- 
stealing.  The.  Masstichusetts  Judges  allowed  the  law,  which  they  had 
.sworn  to  execute,  to  b(;  struck  down  to  the  ground;  nay,  themselves 

'  The  learned  cminsd  fnv  (Ik;  slaveholders  probably  referred  to  Eph.  vi.  5;  or  Coloss. 
ill.  22;  or  Tit.  ii.  9;  or  1  I'et.  ii.  18. 


LORING    KIDNAPS   BURNS.  155 

sought  to  strike  it  down.  The  Federal  Judges  perverted  the  law  to 
make  it  an  instrument  of  torture  against  all  such  as  love  mankind. 
But  the  jury  held  up  the  Shield  of  Justice,  and  the  poisoned  weapons 
of  the  court  fell  blunted  to  the  ground.  The  government  took  noth- 
ing by  that  motion  —  nothing  but  defeat.  There  was  no  conviction. 
One  of  the  jurors  said,  "  You  may  get  one  Hunker  on  any  panel; 
it  is  not  easy  to  get  twelve.  There  was  no  danger  of  a  conviction." 
But  still  it  is  painful  to  think  in  what  peril  our  lives  and  our  liberties 
then  were. 

(5.)  At  length  came  the  "  Burns  case."  You  know  it  too  well.  On 
the  night  of  Wednesday,  May  26,  1854,  in  virtue  of  Commissioner 
Loring's  warrant,  Anthony  Burns  was  arrested  on  the  charge  of  bur- 
glary, and  thrust  into  jail.  The  next  morning  he  was  brought  up  for 
condemnation.  Two  noble  men,  Mr.  Dana  and  my  friend  Mr.  Ellis, 
defended  Mr.  Burns.  There  was  to  be  no  regular  trial  before  Com- 
missioner Loring, 

On  the  evening  of  Friday,  May  28th,  there  was  a  meeting  at 
Faneuil  Hall,  and  an  attack  on  the  Court  House  where  Mr.  Burns 
was  illegally  held  in  duress.  In  the  attack  a  Mr.  Batchelder  was 
killed,  —  a  man  hired  to  aid  in  this  kidnapping,  as  he  had  been  in  the 
stealing  of  Mr.  Sims.  To  judge  from  the  evidence  ofTered  before 
the  Grand-Jury  of  the  Massachusetts  Court,  and  especially  from  the 
testimony  of  Marehal  Freeman,  it  appears  he  was  accidentally  killed 
by  some  of  his  own  confederates  in  that  wickedness,  and  before  the 
door  of  the  Court  House  was  broken  through.  But  that  is  of  no  con- 
sequence :  as  Mr.  Dana  has  said,  "  He  went  went  in  for  his  pay,  and 
has  got  his  corar  On  Friday,  June  4th,  Mr.  Burns  was  declared  a 
slave  by  Commissioner  Loring  and  delivered  up  to  eternal  bondage. 

It  seems  to  be  in  consequence  of  my  connection  with  this  case 
that  I  am  indicted  ;  so  you  now  approach  the  end  of  this  long  defence. 
I  come  to  the  last  part  of  it. 

(III.)     Of  the  Indictment  against  Theodore  Parker. 

I  am  indicted,  gentlemen,  for  "  resisting  an  officer  "  who  was  en- 
gaged in  kidnapping  Mr.  Burns ;  and  it  is  charged  that  I,  at  Boston, 
May  26th,  "  with  force  and  arms  did  knowingly  and  wilfully,  obstruct, 
resist,  and  oppose,  .  .  .  "Watson  Freeman,  then  and  there  being  an 
officer  of  the  United  States,  to  the  great  damage  of  the  said  Watson 
Freeman;  to  the  great  hinderance  and  obstruction  of  justice,  [to  wit, 
of  the  kidnapping  of  Anthony  Burns,]  to  the  evil  example  of  all 
others  in  like  case  ojffending,  against  the  peace  and  dignity  of  the 
said  United  States  and  contrary  to  the'  form  of  the  statute  made  and 
provided." 

It  is  also  charged  that  "one  Theodore  Parker  of  Boston,  .  .  .  with 


156  UNITED    STATES    VS.   THEODORE   PARKER. 

force  and  arms  in  and  upon  the  said  Watson  Freeman,  then  and 
there,  in  the  peace  of  the  said  United  States  being,  an  assault  did 
make,  lie  the  said  Freeman  also  then  and  there  being  an.  officer  of  the 
said  United  States,  to  wit,  Marshal  of  the  United  States,  .  .  .  and 
then  and  there  also  being  in  the  due  and  lawful  discharge  of  his  du- 
ties as  such  officer"  [to  wit,  stealing  and  kidnapping  one  Anthony 
Burns].  These  and  various  other  pleasant  charges,  Mr.  Hallett,  in  the 
jocose  manner  of  indictments,  alleges  against  me  ;  wherefrom  I  must 
defend  myself,  as  best  I  may. 

Now,  Gentlemen,  that  you  may  completely  understand  the  accusa- 
tion brought  against  me,  I  must  go  back  a  little,  and  bring  up  several 
other  matters  of  fact  that  have  straggled  away  from  this  long  column 
of  argument  which  I  have  led  into  the  field  thus  far;  —  and  also  rally 
some  new  forces  not  before  drawn  into  the  line  of  defence.  I  must 
speak  of  the  Hon.  Justice  Curtis ;  of  his  conduct  in  relation  to 
Slavery  in  general,  to  this  particular  prosecution,  and  to  this  special 
case,  United  States  vs.  Theodore  Parker. 

First,  Gentlemen,  let  me  speak  of  some  events  which  preceded  Mr. 
Curtis's  elevation  to  his  present  distinguished  post.  To  make  the 
whole  case  perfectly  clear,  I  must  make  mention  of  some  others  inti- 
mately connected  with  him. 

There  is  a  family  in  Boston  which  may  be  called  the  Curtis  family. 
So  far  as  it  relates  to  the  matter  in  hand,  it  may  be  said  to  consist  of 
six  persons,  namely,  Charles  P.  Curtis,  lawyer,  and  Thomas  B.  Cur- 
tis, merchant,  sons  of  the  late  Thomas  Curtis  ;  Benjamin  R.  Curtis, 
by  birth  a  kinsman,  and  by  marriage  a  son-in-law  of  Charles  P.  Cur- 
tis, late  a  practising  lawyer,  now  this  Honorable  Judge  of  the  Su- 
preme Court  of  the  United  States,  and  his  brother,  George  T.  Curtis, 
lawyer,  and  United  States  Commissioner  for  the  District  of  Massa- 
chusetts ;  Edward  G.  Loring,  a  step-son  of  the  late  Thomas  Curtis, 
and  accordingly  step-brother  of  Charles  P.  and  Thomas  B.  Curtis, 
lawyer.  Judge  of  Probate  for  Boston,  United  States  Commissioner, 
and,  until  recently,  Lecturer  at  the  Cambridge  Law  School ;  and  also 
William  W.  Greenough,  son-in-law  of  Charles  P.  Curtis,  merchant. 

This  family,  though  possessing  many  good  qualities,  has  had  a 
remarkably  close  and  intimate  connection  with  all,  or  most,  of  the 
recent  cases  of  kidnapping  in  Boston.  Here  are  some  of  the  facts,  so 
painful  for  me  to  relate,  but  so  indispensable  to  a  full  understanding 
of  this  case. 

J.  In  1836  Charles  P.  Curtis  and  Benjamin  R.  Curtis  appeared  as 
rouiisc!  lor  th(^  slave-hunters  in- the  famous  case'of  ilu;  girl  Med,  orig"- 
inally  a  slave  in  the  West  Indies,  and  brought  to  Boston  by  her  mis- 
tress.    Med  claimed  her  freedom  on  the  ground  that  slavery  was  not 


SLAVE-HUNTING   ANTECEDENTS    OF   JUDGE   CURTIS.  157 

recognized  by  the  laws  of  Massachusetts,  and  conld  not  exist  here 
unless  it  were  in  the  special  case,  under  the  Federal  Constitution,  of 
fugitives  from  the  slave  States  of  this  Union.  The  Messrs.  Curtis 
contended  with  all  their  skill  —  toUs  viribus,  as  lawyers  say  —  that 
slavery  might,  by  legal  comity,  exist  in  Massachusetts  —  that  slaves 
were  property  by  the  law  of  nations ;  and  that  an  ownership  which 
is  legal  in  the  West  Indies  continued  in  Boston,  at  least  so  far  as  to 
leave  the  right  to  seize  and  carry  away. 

Mr.  Charles  P.  Curtis  had  already  appeared  as  counsel  for  a  slave- 
hunter  in  1832,  and  had  succeeded  in  restoring  a  slave  child,  only 
twelve  or  fourteen  years  of  age,  to  his  claimant  who  took  him  to 
Cuba  with  the  valuable  promise  that  he  should  be  free  in  the  Spanish 
West  Indies.^ 

In  the  Med  case  Mr.  Benjamin  R.  Curtis  made  a  long  and  elabo- 
rate argument  to  show  that  "a  citizen  of  a  slaveholding  State,  who 
comes  to  Massachusetts  for  a  temporary  purpose  of  business  or  pleas- 
ure and  brings  his  slave  as  a  personal  attendant,  may  restrain  that 
slave  for  the  purpose  of  carrying  him  out  of  the  State  and  returning 
him  to  the  domicil  of  his  owner."  To  support  this  proposition,  he 
made  two  points :  — 

"  1.  That  this  child  by  the  law  of  Louisiana  is  noio  a  slave." 

"2.  That  the  law  of  Massachusetts  will  so  far  recognize  and  give 
effect  to  the  law  of  Louisiana,  as  to  allow  the  master  to  exercise  this 
restricted  power  over  his  slave."  That  is,  the  power  to  keep  her  here 
as  a  slave,  to  remove  her  to  Louisiana,  and  so  make  her  a  slave 
for  ever  and  her  children  after  her. 

To  prove  this  last  point  he  says  by  quotation,  "  we  always  import, 
together  with  their  persons,  tJie  existing  relations  of  foreigners  hetiveen 
themselvesP  So  as  we  "import"  the  natural  relation  of  husband 
and  wife,  or  parent  and  child,  in  the  Irish  immigrants,  and  respect  the 
same,  we  ought  equally  to  import  and  respect  the  unnatural  and 
forcible  relation  of  master  and  slave  in  our  visitors  from  Cuba  or 
Louisiana. 

"It  will  be  urged,"  he  said,  "  that  though  we  claim  to  exercise  only  a  riualifiod  and 
limited  right  over  the  slave,  namely  the  right  to  remove  him  from  the  State,  yet  if  this 
is  allowed,  all  the  rights  of  the  master  must  be  allowed,  .  .  .  and  thus  Slavery  will  be 
introduced  into  the  Commonwealth.     To  this  I  answer, 

"  (1.)  There  is  no  practical  dilllculty  in  giving  this  qualified  effect  to  the  law  of  Louis- 
iana, [allowing  the  master  to  bring  and  keep  his  slaves  hei'e  and  remove  them  when  he 

1  Daily  Advertiser,  Dec.  7th,  18.32.  Mr.  Sewall,  the  early  and  indefatigable  friend  of  the  slave, 
asked  the  Court  to  appoint  a  guardian  ad  litem  for  the  child,  who  was  not  14,  who  should  see  that 
he  was  not  enslaved.  But  the  slaveholder's  counsel  objected,  and  the  Judge  (Shaw)  refused;  yet 
to  his  honor  be  it  said  in  a  similar  case  in  1841,  when  Mr.  Sewall  was  counsel  for  a  slave  child 
under  the  same  cuxumstances,  he  delivered  him  to  a  guardian  appointed  by  the  Probate  Court. 
3  Metcalf,  72. 

14 


158  UNITED  STATES  VS.   THEODORE  PARKER. 

will].  The  Constitution  of  the  United  States  has  settled  this  question.  That  provides 
for  and  secures  to  the  master,  the  exercise  of  his  right  to  the  very  extent  claimed  in 
this  ease." 

"  (2.)  Neither  is  there  any  theoretical  difficulty." 

To  do  this,  he  thinks,  will  "  promote  harmony  and  good  feeling, 
where  it  is  extremely  desirable  to  promote  it,  encourage  frequent  in- 
tercourse, and  soften  prejudices  by  increasing  acquaintance,  and  tend 
to  peace  and  union  and  good-will."  "  It  will  work  no  injury  to 
the  State  [Massachusetts],  by  violating  any  public  law  of  the  State. 
The  only  law  in  the  statute-book  applicable  to  the  subject  of  Slavery 
is  the  law  against  kidnapping."  "  It  will  work  no  direct  injury  to  the 
citizens  of  this  State  for,  ...  it  respects  only  strangers."  "  It  is  con-  . 
sistent  with  the  public  policy  of  Massachusetts,  to  permit  this  .  .  .  right 
of  the  master."  "  It  may  he  perfectly  consistent  icith  our  policy  not 
only  to  recognize  the  validity  and  propriety  of  those  institutions  [of 
Slavery]  in  the  States  ivhere  they  exist,  but  even  to  interfere  actively  to 
enable  the  citizens  of  those  States  to  enjoy  those  institutions  at  home^ 
That  is,  it  may  be  the  duty  of  Massachusetts,  "  to  interfere  actively  " 
in  Louisiana  for  the  establishment  and  support  of  Slavery  there ! 

Pennsylvania,  New  York,  New  Jersey,  and  Rhode  Island,  he  adds, 
have  made  laws  allowing  the  slaveholder  this  right :  "  The  legislatures 
of  those  States  are  the  legitimate  and  highest  authority  in  regard  to 
their  public  policy ;  what  they  have  declared  on  this  subject,  must  be 
deemed  to  be  true.  .  .  .  We  are  not  at  liberty  to  suppose  that  it  is 
contrary  to  their  public  policy,  that  the  master  should  exercise  this 
right  within  their  territory.  I  respectfully  ask  what  difference  there  is 
between  the  policy  of  Pennsylvania,  New  York,  Rhode  Island,  and 
New  Jersey,  and  the  policy  of  Massachusetts,  on  the  subject  of 
Slavery." 

"  I  shall  now  attempt,"  he  adds,  "  to  prove  that  Slavery  is  not  hu- 
moral.'''^ How  do  you  think  he  proved  that  ?  Did  he  cite  the  Bible  ? 
No,  he  left  that  to  lower  law  divines.  Did  he  manufacture  Bible  ? 
No,  the  Hon.  Peleg  Sprague  had  sufficiently  done  that  a  year  before. 
He  took  a  shorter  cut  —  he  denied  there  was  any  morality  but  Legal- 
ity. "  I  take  it  to  be  perfectly  clear,"  said  this  young  man  in  all  the 
moral  enthusiasm  of  his  youth,  "  that  the  Standard  of  Morality  by 
which  Courts  of  Justice  are  to  be  guided  is  that  which  the  law  pre- 
scrib(>s.  Your  Honors'  Opinion  as  Men  or  as  Moralists  has  no  bear- 
ing on  the  question.  Your  Honors  are  to  declare  what  the  Law 
deems  moral  or  iran)oral." 

Gentlemen,  that  needs  no  comment ;  tiiis  trial  is  comment  enough. 
But  according  to  that  rule  no  law  is  immoral.  It  was  "not  immoral" 
in  1410  to  hang  and  burn  1hirty-nine  men  in  one  day  for  reading  the 


MESSRS.    CURTIS    SEEKING   TO   ENSLAVE   A    GIRL   IN   1836.  159 

Bible  in  English;  the  Catholic  Inquisition  in  Spain  was  "  not  im- 
moral ; "  the  butchery  of  Martyrs  was  all  right  soon  as  lawful !  There 
is  no  Higher  Law! 

It  was  "  not  immoral"  for  the  servants  of  King  Pharaoh  to  drown 
all  the  new-born  Hebrew  boys ;  nor  for  Herod's  butchers  to  murder 
the  Innocents  at  Bethlehem.  Nay,  all  the  atrocities  of  the  Saint  Bar- 
tholomew Massacres,  Gentlemen,  they  were  "not  immoral,"  for  "the 
Standard  of  Morality"  is  "that  which  the  law  prescribes."  So  any 
legislature  that  can  frame  an  act,  any  tyrant  who  can  issue  a  decree, 
any  court  which  can  deliver  an  "  opinion,"  can  at  once  nullify  the 
legislation  of  the  Universe  and  "dissolve  the  union"  of  Man  and  God  : 
"  Religion  has  nothing  to  do  with  politics ;  there  it  makes  men  mad." 
Is  that  the  doctrine  of  Young  Massachusetts?  Hearken  then  to  the 
Old.  In  1765  her  House  of  Representatives  unanimously  resolved 
that  "  there  are  certain  essential  Rights  .  .  .  which  are  founded  on 
the  Law  of  God  and  Nature,  and  are  the  Common  Rights  of  Man- 
kind, and  that  the  inhabitants  of  this  Province  are  unalienably  en- 
titled to  these  essential  Rights  in  common  with  all  men,  and  that  no 
law  of  Society  .  .  .  can  divest  them  of  these  Rig-hts^  No  "  Standard 
of  Morality  "  but  Law !  A  thousand  years  before  Jesus  of  Nazareth 
taught  his  Beatitudes  of  Humanity,  the  old  Hebrews  knew  better. 
Hearken  to  a  Psalm  nearly  three  thousand  years  old. 

Among  the  assemblies  of  the  great, 

A  Greater  Ruler  takes  his  seat ; 

The  God  of  Hea\pn,  as  Judge,  surveys 

Those  Gods  on  earth,  and  all  their  ways. 

Why  will  ye,  then,  frame  wicked  laws  ? 

Or  why  support  the  unrighteous  cause  ? 

"When  will  ye  once  defend  the  poor. 

That  sinners  vex  the  Saints  no  more  ? 

Arise,  oh  Lord,  and  let  thy  Son  , 

Possess  his  universal  Throne, 

And  rule  the  nations  with  his  rod ; 

He  Is  our  Judge,  and  he  our  God. 

"By  the  laiv  of  this  Commonwealth"  added  Mr.  Curtis,  "  Slavery  is 
not  immoral.  By  the  Supreme  law  of  this  Commonwealth  Slavery  is 
not  only  recognized  as  a  valid  institution,  but  to  a  certain  extent  is 
incorporated  into  our  own  law.  Before  you  [the  court]  rise  from 
your  seats,  you  may  be  called  upon  by  the  master  of  a  fugitive  slave, 
to  grant  a  certificate  .  .  .  which  iviU pvt  the  lohole  force  of  the  Com- 
monwealth at  his  disposal,  to  remove  Ids  slave  from  our  Territory." 

Gentlemen  of  the  Jury,  that  was  conquering  his  prejudices  "with 
alacrity  ; "  it  was  obeying  the  fugitive  slave  bill  fourteen  years  before 
it  was  heard  of. 


160  UNITED    STATES    VS.    THEODORE    PARKER. 

He  adds  still  further,  by  quotation,  "  I  have  no  doubt  but  the  citi- 
zen of  a  Slave  State  has  a  right  to  pass,  upon  business  or  pleasure, 
through  any  of  the  States  attended  by  his  slaves  —  and  his  right  to 
reclaim  his  slave  would  be  unquestioned.  An  escape  from  the  attend- 
ance upon  the  person  of  his  master,  while  on  a  journey  through  a  free 
State,  should  be  considered  as  an  escape  from  the  State  where  the 
master  had  a  right  of  citizenship." 

Mr.  Charles  P.  Curtis  thus  sustained  his  kinsman  :  — 

"  Is  that  to  be  considered  immoral  which  the  Court  is  bound  to  assist  in  doing  ?  It 
is  not  for  us  to  denounce  as  legally  immoral  a  practice  ivhich  is  permitted  and  sanctioned 
iy  tTie  supreme  law  of  the  land  !  "  "  It  is  said  the  practice  of  Slavery  is  corrupting  in 
its  influence  on  public  morals.  .  But  the  practice  of  bringing  slaves  here  was  much 
more  common  thirty  years  ago  than  now.  If  this  practice  be  so  corrupting,  why  is  it 
tolerated  in  other  States?  "  .  .  .  "  The  law  of  New  York  allows  even  foreigners  to  go 
there  with  their  slaves ;  and  have  the  morals  of  that  State  suffered  in  consequence  ? 
In  Pennsylvania  the  law  is  similar,  but  where  is  the  evidence  of  its  pernicious  influ- 
ence ?  "  "  As  to  the  right  to  using  them,  [the  slaves  voluntarily  brought  here  by  their 
masters,]  notwithstanding  the  supposed  horror  at  such  an  admission,  the  legislatures  of 
New  York  and  Pennsj-lvania,  Rhode  Island  and  New  Jersey,  have  actually  enacted 
statutes  allowing  precisely  that  privilege."  ^ 

But  the  Supreme  Court  of  Massachusetts  held  otherwise.  Med 
was  declared  free.  Chief  Justice  Shaw  covered  himself  with  honor 
by  his  decision.  And  soon  after,  (Aug.  29,)  the  Daily  Advertiser,  the 
"  organ  "  of  the  opinions  of  this  family,  said  :  — 

"  In  some  of  the  States  there  is  .  .  .  legislative  provision  for  cases  of  this  sort,  [al- 
lowing masters  to  bring  and  hold  slaves  therein,}fend  it  would  seem  thsit  so7ne  such  pro- 
vision is  necessary  in  this  State,  unless  we  would  prohibit  citizens  of  the  Slave  States 
from  travelling  in  this  State  with  their  families,  and  unless  we  would  permit  such  of 
them  as  wish  to  emancipate  their  slaves,  to  throw  them,  at  their  pleasure,  upon  the  peo- 
ple of  this  State." 

Gentlemen,  Mr.  Curtis  in  1836  contended  for  all  which  Mr.  Toombs 
boasts  he  shall  get  —  the  right  of  the  slaveholder  to  sit  down  at  the 
foot  of  Bunker  Hill  monument  with  his  slaves!  Nay,  Mr.  Curtis 
granted  more :  it  may  be  the  duty  of  Massachusetts  "  to  interfere  ac- 
tively," and  establish  slavery  in  Louisiana,  or  in  Kansas.  It  may  be 
said,  this  was  only  a  lawyer  pleading  for  his  client.  It  was  —  a  law- 
yer asking  the  Supreme  Court  of  Massachusetts  to  establish  slavery 
in  this  Commonwealth.  Is  it  innocent  in  a  lawyer  to  ask  the  court 
to  do  a  wicked  thing,  to  urge  the  court  to  do  it?  Then  is  it  equeiUy 
innocent  to  ask  the  Treasurer  of  a  Railroad  to  forge  stock,  or  an 
editor  to  publish  lies,  or  a  counterfeiter  to  make  and  utter  base  coin, 
or  an  assassin  to  nmrder  men.  Surely  it  is  as  innocent  to  urge  men 
to  kidnap  blacks  in  Africa  as  in  Boston. 

'  Med.  Case,  183G. 


MESSRS.   CURTIS   SEEKING   TO   ENSLAVE  A   OIRL  IN   1836.  161 

Gentlemen,  That  declaration  —  that  the  Statute  supersedes  natural 
Justice,  and  that  the  only  "Standard  of  Morality"  by  which  the  courts 
are  to  be  guided  is  "that  which  the  law  prescribes"  —  deserves  your 
careful  consideration.  "  He  that  squares  his  conscience  by  the  law  is 
a  scoundrel"  —  say  the  proverbs  of  many  nations.  What  do  you 
think  of  a  man  who  knows  no  lawgiver  but  the  General  Court  of 
Massachusetts,  or  the  American  Congress :  no  Justice  but  the  Stat- 
utes? If  Mr.  Curtis's  doctrine  is  correct,  then  Franklin,  Hancock, 
Adams,  Washijigton,  were  only  llebels  and  Traitors!  They  refused 
that  "  Standard  of  Morality."  Nay,  our  Puritan  Fathers  were  all 
"  criminals  ;  "  the  twelve  Apostles  committed  not  only  "  rjiisdemean- 
ors  "  but  sins  ;  and  Jesus  of  Nazareth  was  only  a  malefactor,  a  wanton 
disturber  of  the  public  peace  of  the  world  I 

The  slave  child  Med,  poor,  fatherless,  and  unprotected,  comes  before 
the  Supreme  Court  of  Massachusetts,  claiming  her  natural  and  un- 
alienable Right  to  Liberty  and  the  Pursuit  of  Happiness,  —  if  not 
granted  she  is  a  slave  for  ever.  In  behalf  of  her  wealthy  "owner"  Mr. 
Curtis  resists  the  girl's  claim ;  tells  the  court  she  "  is  now  a  slave ;  " 
there  is  "  no  practical  difficulty  "  in  allowing  the  master  to  keep  her 
in  that  condition,  no  "theoretical  difficulty;"  "slavery  is  not  im- 
moral ; "  it  may  be  the  duty  of  Massachusetts  not  only  to  recognize 
slavery  at  home, but  also  "even  to  interfere  actively"  to  support  slavery 
abroad ;  the  law  is  the  only  "  Standard  of  Morality  "  for  the  courts ; 
that  establishes  slavery  in  Massachusetts!  Gentlemen,  what  do 
mankind  say  to  such  sophistry  ?  Hearken  to  this  Hebrew  Bible : 
"  Wo  unto  them  that  decree  unrighteous  decrees,  and  that  write  griev- 
ousness  which  they  have  prescribed,  to  turn  aside  the  needy  from 
judgment,  and  to  take  away  the  Right  from  the  poor  of  my  people, 
that  widows  may  be  their  prey,  and  that  they  may  rob  the  fatherless.''^ 
Let  the  stern  Psalm  of  the  Puritans  still  further  answer  from  the 
manly  bosom  of  the  Bible. 

"  Judges  who  rule  tbe  world  by  laws, 
Will  ye  despise  the  righteous  cause, 

When  the  injured  poor  before  you  stands? 
Dare  ye  condemn  the  righteous  poor 
And  let  rich  sinners  'scape  secure, 

While  Gold  and  Greatness  bribe  your  hands  ? 

"  Have  ye  forgot,  or  never  knew. 
That  God  will  judge  the  judges  too  ? 

High  in  the  Heavens  his  Justice  reigns  ; 
Yet  you  invade  the  rights  of  God, 
And  send  your  bold  decrees  abroad, 
To  bind  the  Conscience  in  your  chains. 

"  Break  out  their  teeth,  eternal  God, 
Those  teeth  of  hons  dy'd  in  blood ; 

14* 


162  UNITED    STATES    VS.   THEODORE   PARKER. 

And  crusla  the  serpents  in  the  dust  ; 
As  empty  chaff,  when  whirlwinds  rise, 
Before  the  sweeping  tempest  Hies, 

So  let  their  hopes  and  names  be  lost. 

"  Thus  shall  the  Justice  of  the  Lord 
Freedom  and  peace  to  men  afford ; 

And  all  that  hear  shall  join  and  say, 
Sure  there's  a  God  that  rules  on  high, 
A  God  that  hears  his  children  cry, 

And  all  their  sufferings  will  repay." 

2.  After  Mr.  Webster  had  made  his  speech  of  March  7, 1850,  pledg- 
ing himself  and  his  State  to  the  support  of  the  fugitive  slave  bill, 
then  before  Congress,  "to  the  fullest  extent,"  Thomas  B.  Curtis,  with 
the  help  of  others,  got  up  a  letter  to  Mr.  Webster,  dated  March  25, 
1850,  signed,  it  is  said,  by  987  persons,  who  say  :  "  We  desire  to  ex- 
press to  you  our  deep  obligations  for  what  this  speech  has  done  and 
is  doing."  "  You  have  pointed  out  to  a  whole  people  the  path  of 
duty,  have  convinced  the  understanding  and  touched  the  conscience 
of  the  nation."  "  We  desire,  therefore,  to  express  to  you  our  entire 
concurrence  in  the  sentiments  of  your  speech." 

3.  A  little  later,  Mr.  Webster  returned  to  Boston,  and  was  "  raptur- 
ously received  "  at  the  Revere  House,  April  29, 1850,  by  a  "  great  mul- 
titude," when  Benjamin  R.  Curtis  made  a  public  address, and  expressed 
his  "  abounding  gratitude  for  the  ability  and  fidelity "  which  Mr. 
Webster  had  "  brought  to  the  defence  of  the  Constitution  and  of  the 
Union,"  and  commended  him  as  '■'■  eminenllij  vigilant,  wise,  and  faith- 
fid  to  his  country,  ivithout  a  shadoiv  of  turning^ 

4.  Presently,  after  the  passage  of  the  fugitive  slave  bill,  at  a 
dinner  party,  at  the  house  of  a  distinguished  counsellor  of  Boston, 
Charles  P.  Curtis  declared  that  he  hoped  the  first  fugitive  slave 
who  should  come  to  Boston  would  be  seized  and  sent  back  I 

5.  Charles  P.  Curtis  and  his  step-brother  Edward  G.  Loring,  and 
George  T.  Curtis,  defended  the  fugitive  slave  bill  by  writing  articles 
in  the  Boston  Daily  Adcertiser. 

0.  In  Novcmb(!r,  1850,  the  slave-hunters,  thus  invited  and  encour- 
aged, came  to  Boston,  seeking  to  kidnap  William  and  Ellen  Craft: 
but  they  in  vain  applied  to  Commissioner  Benj.  F.  Ilallett,  and  to 
.Judges  Woodbury  and  Sprague,  for  a  warrant  to  arrest  their  prey. 
Finally,  they  betook  themselves  to  Commissioner  George  T.  Curtis, 
who  at  once  agreed  to  grant  a  warrant;  but,  according  to  his  own 
statement,  in  a  letter  to  Mr.  Webster,  Nov.  23,  1850,  as  he  anticipa- 
ted fsistancc,  and  considered  it  very  important  that  the  Marshal 
siionld  have  iriorc  support  than  it  was  in  his  power  as  a  Commissioner 
to  aUbrcl,  he  procured  a  meeting  of  the  Connnissioners,  four  in  num- 


MESSRS.    CURTIS    KIDNAPPING   THE   CRAFTS.  163 

ber,  and  with  their  aid  succeeded  in  persuading  the  Circuit  Court, 
then  in  session,  to  issue  the  warrant. 

Gentlemen,  as  that  letter  of  Mr.  George  T.  Curtis  contains  some 
matters  which  are  of  great  importance,  you  will  thank  me  for  refresh- 
ing your  memory  with  such  pieces  of  history. 

"  An  application  [for  a  warrant  to  arrest  Mr.  Craft]  had  already  been  made  to  tlie 
judges  []\Iessrs.  '\\'oodbury  and  Spragne]  j^-ivately  .  .  .  they  could  not  grant  a  war- 
rant on  account  of  the  pendency  of  an  important  Patent  Cause  then  on  trial  belbre  a 
jury."  "  To  this  I  replied,  that  .  .  .  the  ordinary  business  of  the  Court  ought  to  give 
way  for  a  sufficient  length  of  time,  to  enable  tiic  judges  to  receive  this  application  and 
to  hear  ihe  case."  "  On  a  private  intimation  to  the  presiding  judge  of  our  desire  to 
confer  with  him  [the  desire  of  the  kidnapping  commissioners,  Mr.  B.  F.  Ilallett,  Mr. 
Edward  G.  Loring,  ^Mr.  C.  L.  Woodbury,  and  Mr.  G.  T.  Curtis]  the  jury  were  dis- 
missed at  «m  ea?-/i(?r /iowr /Ao/i  //.sv/a/,  .  .  .  and  every  jierson  present  except  the  Mar shars 
deputies  left  the  rooui,  and  the  doois  rcere  closed."  "  The  learned  Judge  said  .  .  .  that 
he  would  attend  at  half  past  eight  the  next  morning,  to  grant  the  warrant."  "  A 
process  was  placed  in  the  hands  of  the  INIarshal  ...  in  the  execution  of  which  he 
might  be  called  upon  to  break  open  diL-elling-houses,  and  perhaps  take  life,  by  quelling 
resistance,  actual  or  threatened."  "I  devoted  at  once  a  good  deal  of  time  to  the  neces- 
sary investigations  of  the  subject."  "  There  is  a  great  deal  of  legislation  needed  to 
make  the  general  government  independent  of  State  control,"  says  this  "  Expounder  of 
the  Constitution,"  "  and  independent  of  the  power  of  mobs,  whenever  and  wherever 
its  measures  chance  to  be  unpopular."  "  The  office  of  United  States  Marshal  is  by  no 
means  organized  and  fortified  by  legislation  as  it  should  be  to  encounter  popular  dis- 
turbance." 

7.  The  warrant  having  been  issued  for  the  seizure  of  Mr.  Craft, 
Marshal  Devens  applied  to  Benjamin  R.  Curtis  for  legal  advice  as  to 
the  degree  of  force  he  might  use  in  serving  it,  and  whether  it  ought 
to  be  regarded  as  a  civil  or  a  criminal  process.  George  T.  Curtis  was 
employed  by  his  brother  to  search  for  authorities  on  these  points. 
They  two,  together,  as  appears  from  the  letter  of  George  T.  Curtis  to 
Mr.  Webster,  induced  Marshal  Devens  to  ask  a  further  question, 
which  gave  Benjamin  R.  Curtis  an  opportunity  to  come  out  with  an 
elaborate  opinion  in  favor  of  the  constitutionality  of  the  fugitive  slave 
bill,  dated  November  9,  1850.  This  was  published  in  the  newspa- 
pers. In  order  to  maintain  the  constitutionality  of  this  act,  Benjamin 
R.  Curtis  was  driven  to  assume,  as  all  its  defenders  must,  that  the 
Commissioner,  in  returning  the  fugitive,  performs  none  of  the  duties 
of  a  Judge ;  that  the  hearing  before  him  is  not  "  a  case  arising  under 
the  laws  of  the  United  States;"  that  he  acts  not  as  a  judicial,  but 
merely  as  an  executive  and  "ministerial"  officer  —  not  deciding  him 
to  be  a  slave,  but  merely  giving  him  up,  to  enable  that  point  to  be 
tried  elsewhere.^     But,  spite  of  this  opinion,  public  justice  and  the 

'  On  this  see  Hildreth's  Despotism,  262,  280.  Commissioner  Loring  considers  that 
the  fugitive  slave  bill  commissioners  have  "judicial  duties."  Remonstrance  to  General 
Court,  2. 


164  UNITED    STATES    VS.    THEODORE    PARKER. 

Vigilance  Committee  forced  the  (Southern)  slave-hunters  to  flee  from 
Boston,  after  which,  Mr.  and  Mrs.  Craft  left  America  to  find  safety  in 
Eno-land,  the  evident  rage  and  fierce  threats  of  the  disappointed 
Boston  slave-hunters  making  it  unsafe  for  them  to  remain. 

8.  After  the  failure  of  this  attempt  to  arrest  Mr.  Craft,  Thomas  B. 
Curtis  got  up  a  "  Union  Meeting "  at  Faneuil  Hall,  November  26, 
1850.1  r^l^Q  call  was  addressed  to  such  as  "  regard  with  disfavor  all 
further  popular  agitation"  of  the  subject  of  Slavery.  Thomas  B. 
Curtis  called  the  meeting  to  order :  William  W.  Greenough,  from  the 
"  Committee  of  Arrangements,"  presented  the  resolutions,  which  you 
have  already  heard.^  It  was. said  at  the  time  that  they  were  written, 
wholly  or  in  part,  by  Mr.  Benjamin  R.  Curtis,  who  moved  their  adop- 
tion and  made  a  long  and  elaborate  speech  thereon. 

Gentlemen  of  the  Jury,  as  I  just  now  gave  you  some  passages 
from  Mr.  Hallett's  speech  on  that  occasion,  allow  me  now  to  read  you 
some  extracts  from  Mr.  Curtis's  address.  The  general  aim  of  the 
speech  was  to  reconcile  the  People  to  kidnapping ;  the  rhetorical 
means  to  this  end  were  an  attempt  to  show  that  kidnapping  was  ex- 
pedient ;  that  it  was  indispensable ;  that  it  had  been  long  since  agreed 
to ;  that  the  Slaves  were  foreigners  and  had  no  right  in  Massachusetts. 
He  said  :  — 

"  We  have  come  liere  not  to  consider  particular  measures  of  government  but  to 
assert  that  we  have  a  government,  not  to  determine  whether  this  or  that  law  be  wise  or 
just,  but  to  declare  that  there  is  law,  and  its  duties  and  power." 

"Everv  sovereign  State  has  and  must  have  the  right  to  judge  lohat  persons  from 
abroad  shall  be  admitted." 

"  Are  not  these  persons  [fugitive  slaves]  foreigners  as  to  us  —  and  what  right  have 
they  to  come  here  at  all,  against  the  loill  of  the  legislative  poiver  of  the  State.  [Massa- 
chusetts had  no  legislation  forbidding  them!]  And  if  their  coming  here  or  remaining 
here,  is  not  consistent  with  the  safety  of  the  State  and  the  welfare  of  the  citizens  may 
we  not  prohibit  their  coming,  or  send  them  hack  if  they  come?"  "  To  deny  this  is  to 
deny  the  right  of  self-preservation  to  a  State.  ...  It  .  .  .  throws  us  hack  at  once 
into  a  condition  helow  the  most  degraded  savages  who  have  a  semblance  of  government." 
"  You  know  that  the  great  duty  of  justice  could  not  otherwise  be  performed,  [that  is 
without  the  fugitive-from-labor  clause  in  the  Constitution]  ;  that  our  peace  at  home  and 
our  safety  from  foreign  aggression  could  not  otherwise  be  insured ;  and  that  only  by 
this  means  could  we  obtain  'the  Blessings  of  Liberty'  to  the  people  of  Massachusetts 
and  llicir  posterity."  "  In  no  other  way  could  wc  become  an  example  of,  and  security 
for,  the  (•ai)a<:Ity  of  man,  safi^ly  and  peacefully  and  wisely  to  govern  himself  under 
free  and  pojjular  institutions." 

So  the  fugitive  slave  bill  is  an  argument  against  human  depravity, 
showing  the  capacity  of  man  to  govern  himself  "  safely  and  peacefully 
and  wisely." 

'  See  Mr.  Curtis's  letter  in  Daily  Advertiser  of  Febmiaryj^?,  1855. 
''  Sec  above,  p.  148,  149. 


MESSRS.    CURTIS   AND    THE   UNION   MEETING.  165 

He  adds,  as  early  as  1643  the  New  England  colonies  found  it 
necessary  "to  insert  an  article  substantially  lilvc  this  one,"  for  the  ren- 
dition of  fugitive  servants,  and  in  1789  the  Federal  government  de- 
manded that  the  Spaniards  should  surrender  the  fugitive  slaves  of 
Georgia.  Injustice,  Gentlemen,  has  never  lacked  a  precedent  since 
Cain  killed  Abel.     Mr.  Curtis  continues:  — 

"  Wlien  I  look  abroad  over  100,000  happy  homes  in  j\Iassachusetts  and  sec  a  people, 
such  as  the  blessed  sun  has  raiely  shone  uf;on,  so  intelligent  and  educated,  moral,  re- 
ligious, progressive,  and  free  to  do  every  thing  but  wrong  —  I  fear  to  say  that  I  should 
not  be  in  the  wrong  to  put  all  this  at  risk,  because  our  passionate  tcill  impels  us  to  break 
a  promise  our  wise  and  good  fathers  made,  not  to  allow  a  class  of  foreigners  to  come 
here,  or  to  send  them  hack  if  they  came." 

So  the  refusal  to  kidnap  Ellen  and  William  Craft  came  of  the 
"passionale  vnlV  of  the  people,  and  is  likely  to  ruin  the  happy  homes 
of  a  moral  and  religious  people ! 

"1T7^/?.  the  rights  of  these  persons  I  firmly  believe  Massachusetts  has  nothing  to  do.  It 
is  enough  for  us  that  they  have  no  right  to  be  here.  Whatever  natural  rights  they 
have  —  and  I  admit  these  natural  rights  to  their  fullest  extent  —  this  is  not  the  soil  on 
which  to  vindicate  them.  This  is  our  soil,  sacred  to  our  peace,  on  which  we  intend  to 
perform  our  promises,  and  work  out  for  the  benefit  of  ourselves  and  our  posterity  and 
the  world,  the  destiny  which  our  Creator  has  assigned  to  us." 

Gentlemen  of  the  Jury,  it  is  written  of  that  Creator  that  He  is  "no 
Respecter  of  Persons;"  and  "hath  made  of  one  blood  all  nations  of 
men  for  to  dwell  on  all  the  face  of  the  earth."  The  "  Our  Creator  " 
of  Mr.  Curtis  is  also  the  Father  of  William  and  Ellen  Craft ;  and 
that  great  Soul  who  has  ploughed  his  moral  truths  deep  into  the  his- 
tory of  mankind,  represents  the  finalJudge  of  us  all  as  saying  to  such 
as  scorned  his  natural  Law  of  Justice  and  Humanity,  "  Inasmuch  as 

YE  DID  IT  NOT  TO  ONE  OF  THE  LEAST  OF  THESE  YE  DID  IT  NOT  TO  ME." 

Massachusetts  is  "  our  soil,"  is  it ;  "  sacred  to  our  peace,"  which 
is  to  be  made  sure  of  by  stealing  our  brother  men,  and  giving  to 
Commissioners  George  T.  Curtis  and  Edward  G.  Loring  ten  dollars 
for  making  a  slave,  and  only  five  for  setting  free  a  man!  Peace  and 
the  fugitive  slave  bill  I  No,  Gentlemen  of  the  Jury,  it  is  vain  to  cry 
Peace,  Peace  —  when  there  is  no  peace !  Ay,  there  is  no  peace  to 
the  wicked;  and  though  the  counsel  of  the  ungodly  be  carried,  it  is 
carried  headlong! 

In  that  speech.  Gentlemen,  Mr.  Curtis  made  a  special  attack  upon 
me :  — 

"  There  has  been  made  within  these  walls,"  said  he,  "  the  declaration  tliat_^au  article 


166  UNITED    STATES   VS.   THEODORE   PARKER. 

of  the  Constitution  [the  rendition  clause]  of  the  United  States  '  shall  not  be  executed, 
law  or  no  law.'  A  gentleman  olTered  a  resolve  ....  that  '  constitution  or  no  consti- 
tution, law  or  no  law,  we  will  not  allow  a  fugitive  slave  to  be  taken  from  Massachu- 
setts.' The  chairman  of  a  public  meeting  [Hon.  Charles  Francis  Adams,  on  October 
14th]  declared  here  that  '  the  law  will  be  resisted,  and  if  the  fugitive  resists,  and  if  he 
slay  the  slave-hunter,  or  even  the  Marshal,  and  if  he  therefor  be  brought  before  a 
Jury  of  Massachusetts  men,  that  Jury  will  not  convict  him.'  And  as  if  there  should 
be  nothino-  wanting  to  exhibit  the  madness  which  has  possessed  men's  minds,  murder 
and  perjunj  have  been  enacted  into  virtues,  and  in  this  city  preached  from  the  sacred 
desk.  I  must  not  be  suspected  of  exaggerating  in  the  least  degree.  I  read  therefore 
the  following  passage  from  a  sermon  preached  and  published  in  this  city :  — 

"  '  Let  me  suppose  a  case  which  may  happen  here  and  before  long.  A  woman  flies 
from  South  Carolina  to  Massachusetts  to  escape  from  bondage.  Mr.  Greatheart  aids 
her  in  her  escape,  harbors  and  conceals  her,  and  is  brought  to  trial  for  It.  The  punish- 
ment is  a  fine  of  one  thousand  dollars  and  Imprisonment  for  six  months.  I  am  drawn 
to  serve  as  a  juror  and  pass  upon  this  oifence.  I  may  refuse  to  serve  and  be  punished 
for  that,  leaving  men  with  no  scruples  to  take  my  place,  or  I  may  take  the  juror's  oath 
to  give  a  verdict  according  to  the  law  and  the  testimony.  The  law  is  plain,  let  us  sup- 
pose, and  the  testimony  conclusive.  Greatheart  himself  confesses  that  he  did  the  deed 
alleged,  saving  one  ready  to  perish.  The  judge  charges  that  if  the  jurors  are  satisfied 
of  that  fact  then  they  must  return  that  he  is  guilty.  This  Is  a  nice  matter.  Here  are 
two  questions.  The  one  put  to  me  in  my  official  capacity  as  juror,  is  this :  "  Did 
Greatheart  aid  the  woman  ?  "  The  other,  put  to  me  in  my  natural  character  as  man, 
is  this  :  "  Will  you  help  punish  Greatheart  with  fine  and  imprisonment  for  helping  a 
•woman  obtain  her  unaUenable  rights  ?  "  If  I  have  extinguished  my  manhood  by  my 
juror's  oath,  then  I  shall  do  my  official  business  and  find  Greatheart  guilty,  and  I  shall 
seem  to  be  a  true  man  ;  but  if  I  value  my  manhood  I  shall  answer  after  my  natural 
duty  to  love  man  and  not  hate  him,  to  do  him  justice,  not  injustice,  to  allow  him  the 
natural  rights  he  has  not  alienated,  and  shall  say,  "  Not  guilty."  Then  men  will  call 
me  forsworn  and  a  liar,  but  I  think  human  nature  will  justify  the  verdict.' " 

"I  should  like  to  ask,"  he  continued,  "the  reverend  gentleman  in 
what  capacity  he  expects  to  be  punished  for  his  perjury  ?  "  Gentle- 
men of  the  Jury,  I  rose  and  said,  "  Do  you  want  an  answer  to  your 
question,  sir?"  He  had  charged  me  with  preaching  murder  and 
perjury ;  had  asked,  How  I  expected  to  be  punished  for  my  own 
"  PEiuuRY  ?  "  When  I  offered  to  answer  his  question  he  refused  me 
the  opportunity  to  reply!  Thus,  Gentlemen,  he  charged  me  with 
recommending  men  to  commit  perjury!  Did  he  think  I  advised  men 
to  take  an  oath  and  break  it?  On  the  other  side  of  the  page  which 
he  read  there  stood  printed  :  — 

»'  Sujtposf,  a  man  has  sworn  to  keep  the  Constitution  of  the  United  States,  and  the 
Constitution  is  found  to  be  wrong  in  certain  particulars;  then  his  oath  is  not  morally 
binding,  for  before,  his  oath,  by  his  very  existence,  he  is  morally  bound  to  keep  the  law 
of  God  as  fast  as  he,  learns  it.  No  oath  can  absolve  him  from  his  natural  allegiance  to 
God.  Yet  I  see  not  how  a  man  can  knowingly,  and  with  a  good  Conscience,  swear  to 
keep  what  he  deems  it  wnnig  to  keep,  and  will  not  keep,  and  does  not  intend  to 
keep." 


SIIADRACn,    SIMS,    AND    THE   JUDGESHIP.  167 

Gentlemen,  when  that  speech  came  to  be  printed  —  there  was  no 
charge  of  "  perjury  "  at  all,  but  a  quite  dillerent  sentence  !  ^ 

9.  In  February,  1851,  George  T.  Curtis  issued  the  warrant  for  the 
seizure  of  Shadrach,  who  was  "  hauled"  in  to  the  court  house  before 
that  Commissioner;  but  "  the  Lord  delivered  him  out  of  their  hands," 
and  he  also  escaped  out  of  the  United  States  of  America. 

10.  After  the  escape  or  rescue  of  Shadrach,  George  T.  Curtis  tele- 
graphed the  news  to  Mr.  Webster,  at  Washington,  declaring  "  it  is 
levying  war;"  thus  constructing  high  treavson  out  of  the  rescue  of  a 
prisoner  by  unarmed  men,  from  the  hands  of  a  sub-deputy  officer  of 
the  United  States. 

11.  George  T.  Curtis  also  officiated  as  Commissioner  in  the  kid- 
napping of  Thomas  Sims,  in  April,  1851  ;  and  under  the  pretence 
of  "  extradition,"  sent  him  to  be  scourged  in  the  jail  of  Savannah, 
and  then  to  sufler  eternal  bondage.  It  was  rumored  at  the  time  that 
Charles  P.  Curtis  and  Benjamin  R.  Curtis,  his  law-partner  and  son- 
in-law,  were  the  secret  legal  advisers  and  chamber-counsel  of  the 
Southern  slave-hunters  in  this  case.  I  know  not  how  true  the  rumor 
was,  nor  whether  it  was  based  on  new  observation  of  facts,  or  was 
merely  an  inference  from  their  general  conduct  and  character. 

12.  When  Mr.  Sims  was  brought  befjie  Judge  Woodbury,  on 
habeas  corpus,  Benjamin  R.  Curtis  appeared  as  counsel  for  the  Mar- 
shal, and  also  assisted  Judge  Woodbury  in  strengthening  his  opinion 
against  Sims,  by  a  written  note  transmitted  by  an  officer  of  the 
Court  to  the  Judge,  while  he  was  engaged  in  delivering  his  opinion. 

13.  Gentlemen  of  the  Jury,  I  have  shown  you  how,  in  Britain,  the 
Government,  seeking  to  oppress  the  people  and  to  crush  down  freedom 
of  speech,  put  into  judicial  offices  such  men  as  were  ready  to  go  all 
lengths  in  support  of  profitable  wickedness.  You  do  not  forget  the 
men  whom  the  Stuarts  made  judges  :  surely  you  remember  Twysden, 
and  Kelyng,  and  Finch,  and  Saunders,  and  Scroggs.  You  will  not 
forget  Edmund  Thurlow  and  John  Scott.  Well,  Gentlemen,  in  1S51, 
Judge  Woodbury  died,  and  on  the  recommendation  of  Mr.  Webster, 
Mr.  Benjamin  R.  Curtis  was  raised  to  the  dignity  he  now  holds. 
Of  course,  Gentlemen,  the  country  will  judge  of  the  cause  and 
motive  of  the  selection.  No  lawyer  in  New  England  had  laid  down 
such  southern  "Principles"  for  foundation  of  law;  he  outwent  Mr. 
Sprague.  None  had  rendered  such  service  to  the  Slave  Power.  In 
1836,  he  had  sought  to  restore  slavery  to  Massachusetts,  and  to 
accomplish  that  had  denied  the  existence  of  any  Higher  Law,  —  the 


^  See  the  speech  in  Boston  Courier  of  November  27th,  with  the  editoi-ial  comment, 
and  in  Daily  Advertiser  of  2Sth,  Thanksgiving  Daij.  See  also  the  Atlas  of  November 
27th.     The  Sermon  is  in  2  Parker's  Speeches,  241. 


168  UNITED    STATES   VS.   THEODORE   PARKER. 

written  statute  was  the  only  standard  of  judicial  morals.  In  1850,  he 
had  most  zealously  defended  the  fugitive  slave  bill,  —  coming  to  the 
rescue  of  despotism  when  it  seemed  doubtful  which  way  the  money  of 
Boston  would  turn,  and  showing  most  exemplary  diligence  in  his 
attempts  to  kidnap  William  and  Ellen  Craft.  Gentlemen,  if  such 
services  were  left  unpaid,  surely  "the  Union  would  be  in  danger!" 
But  I  must  go  on  with  my  sad  chronicle. 

14.  As  Circuit  Judge  of  the  United  States,  Benjamin  R.  Curtis, 
as  well  in  the  construction  of  juries,  as  in  the  construction  of  the  law, 
exerted  all  his  abilities  against  the  parties  indicted  for  the  rescue  of 
Shadrach,  though  Mr.  Hale  says  his  conduct  was  far  better  than 
Judge  Sprague's.  He  did  this  especially  in  the  case  of  Elizur 
Wright,  who  appeared  without  counsel,  and  thus  afforded  a  better 
opportunity  to  procure  a  conviction.  But  it  was  in  vain  —  all 
escaped  out  of  his  hands. 

15.  In  1851,  George  T.  Curtis  brought  an  action  for  libel  against 
Benjamin  B.  Mussey,  bookseller,  who  had  just  published  a  volume  of 
speeches  by  the  Hon.  Horace  Mann,  one  of  which  was  against  the 
business  of  kidnapping  in  Boston,  wherein  George  T.  Curtis  found, 
as  he  alleged,  matter  libellous  of  himself.  That  suit  remains  yet 
undisposed  of;  but  in  it  he  will  doubtless  recover  the  full  value  of  his 
reputation,  on  which  kidnapping  has  affixed  no  stain. 

16.  In  May,  1854,  Edward  G.  Loring  issued  a  warrant  for  the 
seizure  of  Mr.  Burns  ;  decided  the  case  before  he  heard  it,  having 
advised  the  counsel  not  to  oppose  his  rendition,  for  he  would  prob- 
ably be  sent  back;  held  him  ironed  in  his  "court,"  and  finally  deliv- 
ered him  over  to  eternal  bondage.  But  in  that  case,  it  is  said,  Mr. 
Loring,  who  has  no  Curtis  blood  in  his  veins,  did  not  wish  to  steal  a 
man ;  and  proposed  to  throw  up  his  commission  rather  than  do  such 
a  deed;  but  he  consulted  his  step-brother,'Charles  P.  Curtis,  who  per- 
suaded him  it  would  be  dishonorable  to  decline  the  office  of  kidnap- 
ping imposed  upon  him  as  a  United  States  Commissioner  by  the 
fugitive  slave  bill.  Benjamin  R.  Curtis,  it  is  said,  I  know  not  how 
truly  —  himself  can  answer,  aided  Mr.  Loring  in  forming  the  "  opin- 
ion" by  which  he  attempted  to  justify  the  "extradition"  of  Mr. 
Burns;  that  is  to  say,  the  giving  him  up  as  a  slave  without  any  trial 
of  his  right  to  liberty,  merely  on  a  j^resumptive  case  established  by 
his  claimant. 

17.  After  Commissioner  Loring  had  seized  Mr.  Burns,  Mr.  George 
T.  Curtis,  by  a  communication  published  in  the  newspapers,  informed 
the  public  lliat  he  still  continued  the  business  of  man-hunting  at  the 
old  stand,  whcri;  nil  orders  for  ki(lnapi)ing  would  be  promptly 
attended  to.  l^'or,  he  says,  there  was  a  statement  "that  1  had 
declined,  or  was  unwilling  or  afraid  to  act.     1  did  not  choose  that 


MESSRS.    CURTIS   AND   LORIXG.  169 

any  one  whatever  should  have  an  excuse  for  believing  that  Judge 
Loring  was  willing  to  sit  in  a  case  that  I  had  declined."  "  I  thought 
proper  to  place  myself  as  it  were  by  his  side."  "  But  I  never  took  a 
fee  [for  kidnapping],  and  I  never  shall  take  one."  ^  Did  he  remem- 
ber the  fate  of  the  Hebrew  Judas,  who  "  betrayed  the  Innocent 
Blood,"  and  then  cast  down  the  thirty  pieces  ? 

Hitherto  the  kidnapping  commissioners,  though  both  members  of 
the  same  family,  had  pursued  their  game  separately,  each  on  his  own 
account.  After  this  it  appears  these  two  are  to  hunt  in  couples  : 
Commissioner  Loring  and  Commissioner  Curtis  "  as  it  were  by  his 
side:"  — 

"  Swift  in  pursuit,  but  matched  in  moutli  like  bells, 
Each  under  each." 

Gentlemen  of  the  Jury,  it  is  a  very  painful  thing  for  me  to  deliver 
this  very  sad  chronicle  of  such  wicked  deeds.  But  do  not  judge 
these  men  wholly  by  those  acts.  I  am  by  no  means  stingy  of  com- 
mendation, and  would  rather  praise  than  blame.  The  two  elder 
Messrs.  Curtis  have  many  estimable  and  honorable  qualities,  —  in 
private  relations  it  is  said  —  and  I  believe  it  —  they  are  uncommonly 
tender  and  delicate  and  refined  in  the  elegant  courtesies  of  com- 
mon life.  I  know  that  they  have  often  been  open-handed  and  gen- 
erous in  many  a  charity.  In  the  ordinary  intercourse  of  society, 
where  no  great  moral  principle  is  concerned,  they  appear  as  decorous 
and  worthy  men.  Hon.  Benj.  R.  Curtis,  —  he  will  allow  me  to  men- 
tion his  good  qualities  before  his  face,  —  though  apparently  destitute 
of  any  high  moral  instincts,  is  yet  a  man  of  superior  powers  of 
understanding,  and  uncommon  industry ;  as  a  lawyer  he  was  above 
many  of  the  petty  tricks  so  common  in  his  profession.  Strange  as  it 
may  seem,  I  have  twice  seen  Mr.  George  T.  Curtis's  name  among 
others  who  contributed  to  purchase  a  slave  ;  Mr.  Loring's  good  qual- 
ities I  have  often  mentioned,  and  always  with  delight. 

But  this  family  has  had  its  hand  in  all  the  kidnapping  which  has 
recently  brought  such  misery  to  the  colored  people  and  their  friends; 
such  ineffaceable  disgrace  upon  Boston,  and  such  peril  to  the  natural 
Rights  of  man.  These  men  have  laid  down  and  advocated  the  prin- 
ciples of  despotism  ;  they  have  recommended,  enforced,  and  practif^cd 
kidnapping  in  Boston,  and  under  circumstances  most  terribly  atro- 
cious. Without  their  eflbrts  we  should  have  had  no  man-stealino; 
here.  They  cunningly,  but  perhaps  unconsciously,  represented  the 
low  Selfishness  of  the  Money  Power  at  the  North,  and  the  Slave 
Power  at  the  South,  and  persuaded  the  controlling  men  of  Boston  to 

^  See  Boston  Journal  of  May  29,  and  Boston  Courier  of  June  7,  1854. 

15 


170  UNITED    STATES   VS.   THEODORE  PARKER. 

steal  ]\Ir.  Sims  and  Mr.  Burns.  In  1836  they  sought  to  enslave  a 
poor  little  orphan  girl,  and  restore  bondage  to  Massachusetts ;  in  1851 
they  succeeded  in  enthralling  a  man.  Now,  Gentlemen,  they  are 
seeking  to  sew  up  the  mouth  of  New  England;  there  is  a  sad  con- 
sistency in  their  public  behavior. 

Gentlemen,  they  are  not  ashamed  of  this  conduct;  when  "  A  Citizen 
of  Boston,"  last  January,  related  in  the  New  York  Tribune  some  of 
the  facts  I  have  just  set  forth,  "  One  of  the  name  "  published  his  card 
in  that  paper  and  thanked  the  "  Citizen  "  for  collecting  abundant  evi- 
dence that  the  "  Curtis  Family  "  "  have  worked  hard  to  keep  the  law 
superior  to  fanaticism,  disloyalty,  and  the  mob"  and  declared  that 
"  they  feel  encouraged  to  continue  in  the  same  course  and  their  chil- 
dren after  them."  ^  Mr.  Thomas  B.  Curtis  considers  some  of  the  acts 
I  have  just  mentioned  "  among  the  most  meritorious  acts "  of  his 
life.'-^     Mr.  Loring,  in  his  "  Remonstrance,"  justifies  Kidnapping  ! 

They  may,  indeed,  speak  well  of  the  bridge  which  carries  them  safe 
over.  Three  of  the  family  are  fugitive  slave  bill  commissioners;  one 
of  them  intellectually  the  ablest,  perhaps  morally  the  blindest,  who 
so  charged  me  with  "  Perjury,"  is  the  Honorable  Judge  who  is  to  try 
me  for  a  "  Misdemeanor."  Of  course  he  is  perfectly  impartial,  and 
has  no  animosity  which  seeks  revenge,  —  the  history  of  courts  forbids 
the  supposition ! 

Such,  Gentlemen,  are  the  antecedents  of  the  Hon.  Judge  Curtis, 
such  his  surroundings.  You  will  presently  see  what  effect  they  have 
had  in  procuring  this  indictment.  It  is  a  sad  tale  that  I  have  pre- 
sented. He  told  it,  not  I;  he  did  the  deeds,  and  they  have  now  found 
words. 

Gentlemen  of  the  Jury,  I  shall  next  speak  of  Judge  Curtis's  charge 
to  the  grand-jury,  delivered  in  Boston,  June  7,  1854  —  only  five  days 
after  his  kinsman  had  sent  Mr.  Burns  into  Slavery.  Here  is  that  part 
of  the  charge  which  relates  to  our  case. 

"  There  is  anotlier  criminal  law  of  the  United  States  to  which  I  must  call  your  atten- 
tion, and  give  you  in  charge.  It  was  enacted  on  the  13th  of  April,  1700,  and  is  in  the 
following  words :  — 

" '  If  any  person  shall  knowingly  or  wilfully  obstruct,  resist,  or  oppose  any  ofllccr  of 
the  United  States,  in  serving,  or  attempting  to  serve,  or  execute  any  mesne  process,  or 
warrant,  or  any  rule  or  order  of  any  of  the  courts  of  the  United  States,  or  any  other 
legal  writ  or  process  whatever,  or  shall  assault,  beat,  or  wound  any  ollicer,  or  other 
person  duly  authorized,  in  serving  or  executing  any  writ,  rule,  order,  process,  or  war- 
rant, aforesaid,  su(,h  person  shall,  on  conviction,  be  imprisoned  not  exceeding  twelve 
months,  and  fined  not  exceeding  three  hundred  dollars.' 

1  New  York  Tribune,  .January  15,  1865. 
'^  Daily  Advertiser,  February  7,  1855. 


JUDGE   CURTIS'S    CHARGE.  171 

"  You  will  observe,  Gentlemen,  that  this  law  makes  no  provision  for  a  ease  where  an 
officer,  or  other  person  duly  authorized,  is  killed  by  those  unlawfully  resisting  him. 
That  is  a  case  of  murder,  and  is  left  to  be  tried  and  pimished  under  the  laws  of  the 
State,  within  whose  jurisdiction  the  odence  is  committed.  Over  that  offcmce  against 
the  laws  of  the  State  of  IMassachusctts  we  have  here  no  jurisdiction.  It  is  to  be  pre- 
sumed that  the  duly  constituted  authorities  of  the  State  will,  in  any  such  case,  do  their 
duty ;  and  if  the  crime  of  murder  has  been  committed,  will  prosecute  and  punish  all 
who  are  guilty. 

"  Our  duty  is  limited  to  administering  the  laws  of  the  United  States;  and  by  one  of 
those  laws  which  I  have  read  to  }0u,  to  obstruct,  resist,  or  oppose,  or  beat,  or  wound 
any  odicer  of  the  United  States,  or  other  person  duly  authorized,  in  serving  or  execut- 
ing' any  legal  process  whatsoever,  is  an  offence  against  the  laws  of  the  United  States, 
and  is  one  of  the  subjects  concerning  which  you  are  bound  to  inriuire. 

"  It  is  not  material  that  the  same  act  is  an  offence  both  against  the  laws  of  the  United 
States  and  of  a  particular  State.  Under  our  system  of  government  the  United  States 
and  the  several  States  are  distinct  sovereignties,  each  having  its  own  system  of  criminal 
law,  which  it  administers  in  its  own  tribunals ;  and  the  criminal  laws  of  a  State  can  in 
no  way  affect  those  of  the  United  States.  The  offence,  therefore,  of  obstructln"-  le^al 
process  of  the  United  States  is  to  be  inquired  of  and  treated  by  you  as  a  misdemeanor, 
under  the  Act  of  Congress  which"  I  have  quoted,  without  any  regard  to  the  criminal 
laws  of  the  State,  or  the  nature  of  the  crime  under  these  laws. 

"  This  Act  of  Congress  is  carefully  worded,  and  its  meaning  is  plain.  Nevertheless, 
there  are  some  terms  in  it,  and  some  rules  of  law  connected  with  it,  which  should  be 
explained  for  your  guidance.  And  first,  as  to  the  process,  the  execution  of  Avhich  is 
not  to  be  obstructed. 

"  The  language  of  the  Act  is  very  broad.  It  embraces  every  legal  process  whatso- 
ever, whether  issued  by  a  court  in  session,  or  by  a  judge,  or  magistrate,  or  commissioner 
acting  in  the  due  administration  of  any  laAv  of  the  United  States.  You  will  probably 
experience  no  difficulty  in  understanding  and  applying  this  part  of  the  law. 

"  As  to  what  constitutes  an  obstruction  —  it  was  many  years  ago  decided,  by  Justice 
Washington,  that  to  support  an  indictment  under  this  law,  it  was  not  necessary  to 
prove  the  accused  used  or  even  threatened  active  violence.  Any  obstruction  to  the 
free  action  of  the  officer,  or  his  lawful  assistants,  AvilfuUy  placed  in  his  or  their  way,  for 
the  purpose  of  thus  obstructing  him  or  them,  is  sufficient.  And  it  is  clear  that  if  a 
multitude  of  persons  should  assemble,  even  in  a  public  highway,  with  the  design  to 
stand  together,  and  thus  prevent  the  officer  from  passing  freely  along  the  way,  in  the 
execution  of  his  precept,  and  the  officer  should  thus  be  hindered  or  obstructed,  this 
would  of  itself,  and  without  any  active  violence,  be  such  an  obstruction  as  is  contem- 
plated by  this  law.  If  to  this  be  added  use'  of  any  active  violence,  then  the  officer  is 
not  only  obstructed,  but  he  is  resisted  and  opposed,  and  of  course  the  offence  is  com- 
plete, for  either  of  them  is  sufficient  to  constitute  it. 

"  If  you  should  be  satisfied  that  an  offence  against  this  law  has  been  perpetrated,  you 
will  then  inquire  by  w-hom ;  and  this  renders  it  necessary  for  me  to  instruct  }-ou  con- 
cerning the  kind  and  amount  of  participation  which  brings  individuals  within  the  com- 
pass of  this  law. 

"  And  first,  all  who  are  present  and  actually  obstruct,  resist,  or  oppose,  are  of  course 
guilty.  So  are  all  who  are  present  leagued  in  the  common  design,  and  so  situated  as 
to  be  able,  in  case  of  need,  to  afford  assistance  to  those  actually  engaged,  though  they 
do  not  actually  obstruct,  resist,  or  oppose.  If  they  are  present  for  the  purpose  of  af- 
fording assistance  in  obstructing,  resisting,  or  opposing  the  officers,  and  are  so  situated 
as  to  be  able  in  any  event  which  may  occur,  actually  to  aid  in  the  common  design, 
though  no  overt  act  is  done  by  them,  they  are  still  guilty  under  this  law.     The  offence 


172  UNITED    STATES    VS.    THEODORE    PARKER. 

defined  by  this  act  is  a  misdemeanor;  and  it  is  rule  of  law  that  whatever  participation, 
in  case  of  felony,  would  render  a  person  guilty,  either  as  a  principal  in  the  second  de- 
gree, or  as  an  accessory  before  the  fact,  does,  in  a  case  of  misdemeanor,  render  him 
guilty  as  a  principal ;  in  misdemeanors  all  are  principals.  And,  therefore,  in  pursu- 
ance of  the  same  rule,  not  only  those  who  are  present,  but  those  who,  thougli  absent 
when  the  offence  was  committed,  did  procure,  counsel,  command,  or  abet  others  to  com- 
mit the  offence,  are  indictable  as  principal. 

"  Such  is  the  law,  and  it  would  seem  that  no  just  mind  could  doubt  its  propriety.  If 
persons  having  influence  over  others  use  that  influence  to  induce  the  commission  of 
crime,  while  they  themselves  remain  at  a  safe  distance,  that  must  be  deemed  a  very 
imperfect  system  of  law  which  allows  them  to  escape  with  impunity.  Such  is  not  our 
law.  It  treats  such  advice  as  criminal,  and  subjects  the  giver  of  it  to  punishment 
according  to  the  nature  of  the  offence  to  which  his  pernicious  counsel  has  led.  If  it 
be  a  case  of  felony,  he  is  by  the  common  law  an  accessory  before  the  fact,  and  by  the 
laws  of  the  United  States  and  of  this  State,  is  punishable  to  the  same  extent  as  the 
principal  felon.  If  it  be  a  case  of  misdemeanor,  the  adviser  is  himself  a  principal 
offender,  and  is  to  be  indicted  and  punished  as  if  he  himself  had  done  the  criminal  act. 
It  may  be  important  for  you  to  know  what,  in  point  of  law,  amounts  to  such  an  advis- 
ing or  counselling  another  as  will  be  sufficient  to  constitute  this  legal  element  in  the 
ofience.  It  is  laid  down  by  high  authority,  that  thoitgh  a  mere  tacit  acquiescence,  or 
words,  which  amount  to  a  bare  permission,  will  not  be  sufficient,  yet  such  a  procure- 
ment may  be,  either  by  direct  means,  as  by  hire,  counsel,  or  command,  or  indirect,  by 
evincing  an  express  liking,  approbation,  or  assent  to  another's  criminal  design.  From 
the  nature  of  the  case,  the  law  can  prescribe  only  general  rules  on  this  subject.  My 
instruction  to  you  is,  that  language  addressed  to  persons  who  immediately  afterwards 
commit  an  offence,  actually  intended  by  the  speaker  to  incite  those  addressed  to  com- 
mit it,  and  adapted  thus  to  incite  them,  is  such  a  counselling  or  advising  to  the  crime 
as  the  law  contemplates,  and  the  person  so  inciting  others  is  liable  to  be  indicted  as  a 
principal. 

"In  the  case  of  the  Commomcealth  v.  Bowen  (13  Mass.  K.  359),  which  was  an  indict- 
ment for  counselling  another  to  commit  suicide,  tried  in  1816,  Chief  Justice  Parker 
instructing  the  jury,  and  speaking  for  the  Supreme  Court  of  Massachusetts,  said:  — 

" '  The  government  is  not  bound  to  prove  that  Jewett  would  not  have  hung  himself, 
had  Bowen's  counsel  never  reached  his  ear.  The  very  act  of  advising  to  the  commis- 
sion of  a  crime  is  of  itself  unlawful.  The  presumption  of  law  is  that  advice  has  the 
influence  and  effect  intended  by  the  adviser,  unless  it  is  shown  to  have  been  otherwise  ; 
as  that  the  counsel  was  received  with  scoff,  or  was  manifestly  rejected  and  ridiculed  at 
the  time  it  was  given.  It  was  said  in  the  argument  that  Jewett's  abandoned  and  de- 
praved character  furnishes  ground  to  believe  tliat  he  would  have  committed  the  act 
without  such  advice  from  Bowen.  "Without  doubt  he  was  a  hardened  and  depraved 
wretch ;  but  it  is  in  man's  nature  to  revolt  at  self-destruction.  When  a  person  is  prede- 
termined upon  the  commission  of  this  crime,  the  seasonable  admonitions  of  a  disci'eet 
and  respected  friend  would  probably  tend  to  overthrow  his  determination.  On  the 
other  liand,t]ie  counsel  of  an  unprincipled  wretch,  stating  the  heroism  and  courage  the 
sclf-niurdcnjr  displays,  might  induce,  encourage,  and  fix  the  intention,  and  ultimately 
procure  the  perpetration  of  the  dreadful  deed;  and  if  other  men  would  be  influenced 
by  sucli  advicr-,  the  presumption  is  that  Jewett  was  so  influenced.  lie  might  have 
been  influenced  l)y  many  powerful  motives  to  destroy  himself.  Still  the  inducements 
might  have  been  insufficient  to  procure  the  actual  commission  of  the  act,  and  one  word 
of  additional  advice  might  have  turned  the  scale.' 

"When  applied  —  as  this  ruling  seems  to  have  been  here  applied  —  to  a  case  in 
which  tlic  advice  was  nearl}-  connected,  in  point  of  time,  with  the  criminal  act,  it  is,  in 


JUDGE   CURTIS'S   CHARGE.  173 

my  opinion,  correct.  If  the  advice  was  intended  by  the  giver  to  stir  or  incite  to  a 
crime  —  if  it  was  of  such  a  nature  as  to  be  adapted  to  have  this  efiect,  and  the  persons 
incited  immediately  afterwards  committed  that  crime  —  it  is  a  just  presumption  that 
they  were  influenced  by  the  advice  or  incitement  to  commit  it.  Tlie  circumstances,  or 
direct  proof,  may  or  may  not  be  sufficient  to  control  this  presumption ;  and  whetlier 
they  are  so,  can  duly  be  determined  in  each  case,  upon  all  its  evidence. 

"  One  other  rule  of  law  on  this  subject  is  necessary  to  be  borne  in  mind  —  the  sub- 
stantive offence  to  Avhich  the  advice  or  incitement  applied  must  have  been  committed ; 
and  it  is  for  that  alone  the  adviser  or  procurer  is  legally  accountable.  Thus  if  one 
should  counsel  another  to  rescue  one  prisoner,  and  he  should  rescue  another,  unless  by 
mistake ;  or  if  the  incitement  was  to  rescue  a  prisoner,  and  he  commit  a  larceny,  the 
inciter  is  not  responsible.  But  it  need  not  appear  Ihdt  the  precise  time,  or  jjlace,  or 
means  advised,  were  used.  Thus  if  one  incite  A.  to  murder  B.,  but  advise  him  to  wait 
until  B.  shall  be  at  a  certain  place  at  noon,  and  A.  murders  B.  at  a  different  place  in  the 
morning,  the  adviser  is  guilty.  So  if  the  incitement  be  to  poison,  and  the  murderer 
shoots,  or  stabs.  So  if  the  counsel  be  to  beat  another,  and  he  is  beaten  to  death,  the 
adviser  is  a  murderer ;  for  having  incited  another  to  commit  an  unlawful  act,  he  is 
responsible  for  all  that  ensues  upon  its  execution. 

"  These  illustrations  are  drawn  from  cases  of  felonies,  because  they  are  the  most 
common  in  the  books  and  the  most  striking  in  themselves ;  but  the  principles  on  which 
they  depend  are  equally  applicable  to  cases  of  misdemeanor.  In  all  such  cases  the 
real  question  is,  whether  the  accused  did  procure,  counsel,  command,  or  abet  the  sub- 
stantive offence  conuuitted.  If  he  did,  it  is  of  no  importance  that  his  advice  or  direc- 
tions were  departed  from  in  respect  to  the  time,  or  place,  or  precise  mode  or  means  of 
committing  it. 

"  Gentlemen  :  The  events  which  have  recently  occurred  in  this  city,  have  rendered 
it  my  duty  to  call  your  attention  to  these  rules  of  law,  and  to  direct  you  to  inquire 
whether  in  point  of  fact  the  ofience  of  obstructing  process  of  the  United  States  has 
been  committed ;  if  it  has,  you  will  present  for  trial  all  such  persons  as  have  so  partici- 
pated therein  as  to  be  guilty  of  that  ofience.  And  you  will  allow  me  to  say  to  you 
that  if  you  or  I  were  to  begin  to  make  discriminations  between  one  law  and  another, 
and  say  this  Ave  will  enforce  and  that  we  will  not  enforce,  we  should  not  only  violate 
our  oaths,  but  so  far  as  in  us  lies,  we  should  destroy  the  liberties  of  our  country,  which 
rest  for  their  basis  upon  the  great  principle  that  our  couutrj-  is  governed  by  laws,  con- 
stitutionally enacted,  and  not  by  men. 

"  In  one  part  of  our  country  the  extradition  of  fugitives  from  labor  is  odious ;  in 
another,  if  we  may  judge  from  some  transactions,  the  law  concerning  the  extradition 
of  fugitives  from  justice  has  been  deemed  not  binding;  in  another  still,  the  tariff  laws 
of  the  United  States  were  considered  oppressive,  and  not  fit  to  be  enforced. 

"  Who  can  fail  to  see  that  the  government  would  cease  to  be  a  government  if  it  were 
to  yield  obedience  to  those  local  opinions  ?  While  it  stands,  all  its  laws  must  be  faith- 
fully executed,  or  it  becomes  the  mere  tool  of  the  strongest  faction  of  the  place  and  the 
hour.  If  forcible  resistance  to  one  law  be  permitted  practically  to  repeal  it,  the  power 
of  the  mob  would  inevitably  become  one  of  the  constituted  authorities  of  the  State,  to 
be  used  against  any  law  or  any  man  obnoxious  to  the  interests  and  passions  of  the  worst 
or  most  excited  part  of  the  community ;  and  the  peaceful  and  the  weak  would  be  at 
the  mercy  of  the  violent. 

"  It  is  the  imperative  duty  of  all  of  us  concerned  in  the  administration  of  the  laws 
to  see  to  it  that  they  are  firmly,  impartially,  and  certainly  applied  to  every  offence, 
whether  a  particular  law  be  by  us  individually  approved  or  disapproved.  And  it  be- 
comes all  to  remember,  that  forcible  and  concerted  resistance  to  any  law  is  civil  war, 
which  can  make  no  progress  but  throusjh  bloodshed,  and  can  have  no  termination  but 


174  UNITED    STATES   VS.   THEODORE   PARKER. 

tlie  destruction  of  the  government  of  our  country,  or  the  ruin  of  those  engaged  in  such 
resistance.  It  is  not  my  province  to  comment  on  events  which  have  recently 
happened.  They  are  matters  of  fact  which,  so  far  as  they  are  connected  with  the 
criminal  laws  of  the  United  States,  are  for  your  consideration.  I  feel  no  doubt  that, 
as  good  citizens  and  lovers  of  our  country,  and  as  conscientious  men,  you  will  well 
and  truly  observe  and  keep  the  oath  you  have  taken,  diligently  to  inquire  and  true 
presentment  make  of  all  crimes  and  offences  against  the  laws  of  the  United  States 
given  you  in  charge."^,- 

Now  gentlemen  look  at  some  particulars  of  this  charge. 

1.  "  If  a  multitude  of  persons  shall  assemble  even  in  a  public  high- 
iva?/,  with  the  design  to  stand  together,  and  thus  prevent  the  officer 
from  passing  freelij  along  that  ivaij,  in  the  execution  of  his   precept, 

and  the  officer  should  thus  be  hindered  and  obstructed,  this  would,  of 
itself,  and  without  any  active  violence,  be  such  an  obstruction  as  is 
contemplated  by  this  law."  Of  course,  all  persons  thus  assembled  in 
the  public  highway  were  guilty  of  that  offence,  and  liable  to  be  pun- 
ished with  imprisonment  for  twelve  months  and  a  fine  of  three  hun- 
dred dollars:  '■'■  All  ivho  are  present,  and  obstruct,  resist,  or  oppose, 
are  of  course  guiltyP  Their  "  design  "  is  to  be  inferred  from  "  the 
fact "  that  the  officer  was  obstructed. 

That  is  not  all,  this  oftence  in  technical  language  the  Judge  calls  a 
"  misdemeanor,"  and  in  "  misdemeanors,"  he  says,  "  all  are  principals." 
So,  accordingly,  not  only  are  are  all  guilty  who  actually  obstruct  but 
likewise  all'who  are  "  leagued  in  the  common  design,  and  so  situated 
as  to  be  able  in  case  of  need  to  afford  assistance  to  those  actually  en- 
gaged, though  they  do  not  actually  obstruct,  resist,  or  oppose."  These 
are  obstructors  by  construction  No.  1 ;  they  must  have  been  several 
thousands  in  number. 

But  even  that  is  not  all ;  the  judicial  logic  of  deduction  goes  further 
still,  and  he  adds,  "  Not  only  those  who  are  present,  but  those  icho 
though  absent  when  the  otlence  was  committed,  did  procure,  counsel, 
command,  or  abet  olhers  to  commit  the  offence  are  indictable  as  prin- 
cipals."    These  are  obstructors  by  construction  No.  2. 

2.  Next  he  determines  what  it  is  which  "  amounts  to  such  advising 
or  counselling  another  as  will  be  sufficient  to  constitute  this  legal  ele- 
ment in  the  offence."  First  he  constructs  the  physical  act  which  is 
the  misdemeanor,  namely,  standing  in  the  high  road  and  thereby  hin- 
dering a  kidnapper  from  "passing  freely  along  that  way  ;  or  being  so 
situated  as  to  be  able  to  afford  assistance  to  others  thus  standing;  or 
advising  another  thus  to  stand,  or  be  situated:"  next  he  constructs 
the  advice,  the  metaphysical  act,  which  is  equally  a  "  misdemeanor." 
This  is  the  square  root  of  construction  No.  2.  Look  at  this  absurd 
quantity. 

'  Law  lleportcr,  August,  1854. 


JUDGE   CURTIS'S   CHARGE.  175 

"  Such  a  procurement  may  he,  either  by  direct  means,  as  by  hire,  coun- 
sel, or  command,  or  indirect",  by  evincing'  an  express  liking,  approba- 
tion, or  assent.''^  Thus  the  mere  casual  expression,  "  I  wish  Burns 
would  escape,  or  I  wish  somebody  would  let  him  out,"  is  a  "  Mis- 
demeanor;" it  is  "evincing  an  express  liking."  Noddhig  to  any 
other  man's  similar  wish  is  a  misdemeanor.  It  is  "  approbation." 
Even  smiling  at  the  nod  is  a  crime  —  it  is  "assent."  Such  is  the 
threefold  shadow  of  this  constructive  shade.  But  even  that  is  not 
all.  A  man  is  held  responsible  for  what  he  evinced  no  express  or  im- 
plied liking  for:  ^'•it  need  not  appear  that  Ute  precise  time,  or  place,  or 
means  advised,  were  iisedP  Accordingly,  he  that  "  evinces  an  express 
liking,"  "  is  responsible  for  all  that  ensues  upon  its  exenftiony  He 
evinces  his  assent  to  the  End  and  is  legally  responsible  for  any  Means 
which  any  hearer  thereof  shall,  at  any  time,  or  in  any  place,  make  use 
of  to  attain  that  end! 

Gentlemen  of  the  Jury,  this  charge  is  a  quo  ivarranto  against  all 
Freedom  of  Speech.  But  supjjose  it  were  good  law,  and  suppose 
the  Grand-.Jury  obedient  to  it,  see  how  it  would  apply. 

All  who  evinced  an  express  liking,  approbation,  or  assent  to  the 
rescue  of  Mr.  Burns  are  guilty  of  a  misdemeanor ;  if  they  "  evinced 
an  express  liking "  that  he  should  be  rescued  by  a  miracle  wrought 
by  Almighty  God,  —  and  some  did  express  "  approbation  "  of  that 
"  means,"  —  they  are  indictable,  guilty  of  a  "  misdemeanor;"  "  it  need 
not  appear  that  the  precise  time,  or  place,  or  means  advised,  were 
used  I"  If  any  colored  woman  during  the  wicked  week  —  which 
was  ten  days  long  —  prayed  that  God  would  deliver  Anthony,  as  it 
is  said  his  angel  delivered  Peter,  or  said  "  Amen  "  to  such  a  prayer, 
she  was  "guilty  of  a  misdemeanor;"  to  be  indicted  as  a  "principal." 

So  every  man  in  Boston  who,  on  that  bad  Friday,  stood  in  the 
streets  of  Boston  between  Court  Square  and  T  Wharf," was  "guilty 
of  a  misdemeanor,"  liable  to  a  fine  of  three  hundred  dollars,  and  to 
jailing  for  twelve  months.  All  who  at  Faneuil  Hall  stirred  up  the 
minds  of  the  people  in  opposition  to  the  fugitive  slave  bill ;  all  who 
shouted,  who  clapped  their  hands  at  the  words  or  the  countenance  of 
their  favorites,  or  who  expressed  "approbation"  by  a  whisper  of 
"  assent,"  are  "  guilty  of  a  misdemeanor."  The  very  women  who 
stood  for  four  days  at  the  street  corners,  and  hissed  the  infamous 
Slave-hunters  and  their  coadjutors;  they,  too,  ought  to  be  punished 
by  fine  of  three  hundred  dollars  and  imprisonment  for  a  j^ear!  Well, 
there  were  fifteen  thousand  persons  "assembled"  "in  the  highway" 
of  the  city  of  Boston  that  day  opposed  to  kidnapping;  half  the  news- 
papers in  the  country  towns  of  Massachusetts  "evinced  an  express 
liking"  for  freedom,  and  opposed  the  kidnapping  ;  they  are  all  "  guilty 
of  a  misdemeanor ; "  they  are  "  Principals."     Nay,  the  ministers  all 


176  UNITED    STATES   VS.   THEODORE   PARKER. 

over  the  State,  who  preached  that  kidnapping  was  a  sin ;  those  who 
read  brave  words  out  of  the  Old  Testament  or  the  New ;  those  who 
prayed  that  the  victim  might  escape;  they,  likewise,  were  "guilty  of 
a  misdemeanor,"  liable  to  be  fined  three  hundred  dollars  and  jailed  for 
twelve  months.^ 

But  where  did  Judge  Curtis  find  his  right  to  levy  Ship-money, 
Tonnage,  and  Poundage  on  the  tongues  of  men;  where  did  he  find 
his  "  law?"  Surely  not  in  the  statute.  When  the  bill  was  pending 
in  1790,  suppose  his  construction  of  the  statute  had  been  declared  to 
Congress  —  who  would  have  voted  for  a  law  so  monstrous?  The 
statute  lay  in  the  Law-book  for  nearly  seventy  years,  and  nobody  ever 
applied  it  to  a  case  like  this. 

Gentlemen,  I  have  shown  you  already  how  British  judges  in  the 
time  of  the  Jameses  and  Charleses  perverted  the  law  to  the  basest  of 
purposes.  I  mentioned,  amongst  others,  the  work  of  Tvvysden  and 
Kelyng  and  Jones.  This  is  a  case  like  those.  Just  now  I  spoke  of 
the  action  of  Chief  Justice  Parker  who  said  it  was  not  for  the  jury  to 
judge  whether  a  law  ivere  harsh  or  not;  I  showed  how  he  charged  the 
jury  in  the  case  of  Bowen,  and  how  the  jury  returned  a  verdict  of 
"  not  guilty,"  thus  setting  his  inhuman  charge  at  nought.^  But  Judge 
Curtis,  for  his  law,  relies  upon  Judge  Parker's  charge.  It  is  not  a 
Statute  made  by  the  legislature  that  Judge  Curtis  relies  on  for  his 
law ;  it  is  not  a  Custom  of  the  Common  law ;  it  is  not  an  Opinion  of 
the  Court  solemnly  pronounced  after  mature  deliberation ;  it  is  only 
the  charge  of  a  single  judge  to  a  jury  in  a  special  case,  and  one 
which  the  jury  disregarded  even  then  ! 

But  where  did  Judge  Parker,  an  estimable  man,  find  his  law?  Mr. 
Perez  Morton,  the  Attorney-General,  found  it  in  Kelyng's  Reports. 
In  the  case  of  Bowen  only  one  authority  is  referred  to  for  that  odious 
princij)le  on  which  the  judge  sought  to  hang  him  ;  that  authority  is 
taken  from  "  9  Charles  I. ;  "  from  the  year  1634  —  the  worst  age  of  the 
Stuart  tyranny !  But  even  that  authority  was  not  a  Statvite  law,  not 
a  Custom  of  the  People,  not  the  Opinion  of  a  Court  solemnly  pro- 
nounced. It  was  the  charge  of  a  single  judge  —  a  charge  to  a  jury, 
made  by  an  inferior  judge,  of  an  inferior  court,  in  a  barbarous  age, 
under  a  despotic  king!  Hearken  to  this,  —  from  the  volume  of 
Kelyng's  Reports.^  "  Memorandmn,  That  my  Brother  Twysden 
shewed  me  a  Report  which  he  had  of  the  Charge  given  by  Justice 
Jones  to  the  grand-jury  at  the  King's  Bench  Barr,  in  Michaelmas 
Term,  9  Carl.  I."  (i<'iit!('inen  of  the  Jury,  that  charge  no  more  settled 
the  law  even  in  1031,  1li;m  Judge  Sprague's  charge  telling  \he  grand- 
jury  to  '■'•  obf'u  bolh^'  \\\v  law  of  God  and  the  law  of  man  which  is  ex- 

'  2  Parker's  Ailditioiiul,  280.      ^  g^g  j^i^oy^.^  p_  ^  j  2.       '  Page  52.    See  above,  p.  112. 


SOURCES    OF   JUDGE   CURTIS'S   "  LAW."  177 

actly  opposite  thereto,  settled  the  law  of  the  United  States  and  the 
morality  of  the  People.  But  yet  tliat  is  all  the  law  the  governirient 
had  to  hang  Bowen  with.     The  jury  made  nothing  of  it.^ 

But  Kelyng's  Reports  are  of  no  value  as  authority.  Here  is  what 
Lord  Campbell,  now  Chief  Justice  of  the  King's  Beneh,  says  of  them 
and  their  author.  I  read  it  to  you  long  ago.  "  I  ought  to  mention 
that  among  his  other  vanities  he  had  the  ambition  to  be  an  author; 
and  he  compiled  a  folio  volume  of  decisions  in  criminal  laws,  ivhich 
are  of  no  value  whatever  except  to  make  us  lavg'h  at  some  of  the  silly 
eg;otisms  inith  which  they  aboumV'^  Tvvysden,  who  showed  him  the 
Report  of  the  charge,  is  of  little  value,  and  of  no  authority.  I  men- 
tioned his  character  before.  • 

Justice  Jones,  who  made  the  charge,  would  hardly  be  an  authority 
in  the  English  courts  in  a  nice  question  of  construction.  He  allowed 
the  king  to  levy  ship-money,  as  I  have  shown  before,^  and  dared  not 
perform  the  duties  of  his  office  and  so  protect  the  Liberty  of  the 
Subject  when  the  king  smote  thereat.  He  was  brought  before  the 
House  of  Commons  to  answer  for  his  conduct,  in  1628.  "  His  mem- 
ory," says  Echard,  "suffers  upon  the  account  of  his  open  judgment 
for  the  ship-money,  the  unhappy  consequence  of  which  he  did  not 
live  to  see."  * 

Judge  Kelyng,  the  great  authority  in  this  case,  was  notorious  for 
violating  alike  Justice  and  the  law.  Out  of  a  riot  committed  by 
some  apprentices  he  constructed  the  crime  of  High  Treason,  and 
sentenced  thirteen  men  to  death.  He  fined  and  imprisoned  jurors  be- 
cause they  refused  to  return  the  wicked,  illegal  verdict  he  demanded. 
With  language  too  obscene  to  utter  in  this  century,  he  mocked  at  the 
Great  Charter  of  English  Liberty.  But  at  last  the  scandal  was  too 
great  even  for  the  reign  of  Charles  XL,  and  in  1667  the  "  Grand  Com- 
mittee of  Justice  "  in  the  House  of  Commons,  after  examining  wit- 
nesses and  hearing  him  on  his  own  behalf,  reported:  — 

1.  "  Tliat  tlie  proceedings  of  the  Lord  Cliief  Justice  in  the  cases  referred  to  us  are 
innovations  in  the  trial  of  men  for  their  lives  and  liberties,  and  that  lie  hath  used  an 
arbitrary  and  illegal  power  which  is  of  dangerous  consequence  to  the  lives  and  libei'- 
ties  of  the  people  of  England." 

2.  "  That  in  place  of  Judicature,  the  Lord  Chief  Justice  hath  undervalued,  vilified, 
and  condemned  Magxa  Ciiakta,  the  great  preserver  of  our  lives,  freedom,  and 
property." 

3.  "  That  the  Lord  Chief  Justice  be  brought  to  trial,  in  order  to  condign  punish- 
ment, in  such  manner  as  the  House  shall  judge  most  fit  and  recjuisite."-' 

■1  Jones's  "opinion"  relates  to  a  case  of  murder  by  the  advice  of  an  absent  person,  not  at  all  to 
suicide  by  the  advice  of  another,  so  it  could  not  apply  to  the  case  of  Bowen. 

2  2  Campbell's  Justices,  406. 

s  Above,  p.  23. 

*  Pari.  Hist.  290;  3  St.  Tr.  844, 1181,  162;  2  Echard,  186. 

s  See  above,  p.  23,  39,  113,  125;  1  Campbell,  Ibid.  406;  6  St.  Tr.  76,  229,  171,  532,  709,  879, 
992 ;  Pepy's  Diary,  17  Oct.,  1667 ;  Commons  Journal,  16th  Oct.,  1667. 


178  UNITED    STATES    VS.    THEODORE   PARKER. 

Some  of  the  lawyers  whom  he  had  browbeaten,  generously  inter- 
ceded for  him.  He  made  an  abject  submission  "with  great  humility 
and  reverence,"  and  the  House  desisted  from  prosecution.  "  He  was 
abundantly  tame  for  the  rest  of  his  days,"  says  Lord  Campbell,  "  fell 
into  utter  contempt,"  "  and  died  to  the  i^reat  relief  of  all  who  had  any 
regard  foi'  the  due  administration  of  justice.'" 

Gentlemen,  I  am  no  lawyer,  and  may  easily  be  mistaken  in  this 
matter,  but  as  I  studied  Judge  Curtis's  charge  and  cast  about  for  the 
sources  of  its  doctrines  and  phraseology,  I  thought  I  traced  them  all 
back  to  Kelyng's  opinions  in  that  famous  case,  where  he  made  treason 
out  of  a  common  riot  among  apprentices ;  and  to  Judge  Chase's 
"  opinions"  and  "rulihgs"  in  the  trial  of  Mr.  Fries,  —  opinions  and 
rulings  which  shocked  the  public  at  the  time,  and  brought  legislative 
judgment  on  his  head.  Let  any  one  compare  the  documents,  I  think 
he  will  find  the  whole  of  Curtis  in  those  two  impeached  Judges,  in 
Kelyng  and  in  Chase.^ 

Here  then  is  the  law,  —  derived  from  the  memorandum  of  the 
charge  to  a  grand-jury  made  in  1634,  by  a  judge  so  corrupt  that  he 
did  not  hesitate  to  violate  Magna  Charta  itself;  not  published  till 
more  than  seventy  years  after  the  charge  was  given ;  cited  as  law  by 
a  single  authority,  and  that  authority  impeached  for  unrighteously 
and  corruptly  violating  the  laws  he  was  set  and  sworn  to  defend,  im- 
peached even  in  that  age  —  of  Charles  11. ;  —  that  is  the  law!  Once 
before  an  attempt  was  made  to  apply  it  in  Massachusetts,  and 
inflict  capital  punishment  on  a  man  for  advising  a  condemned  mur- 
derer to  anticipate  the  hangman  and  die  by  his  own  hand  in  private 
—  and  the  jury  refused.  But  to  such  shifts  is  this  Honorable  Court 
reduced  I  Gentlemen  of  the  Jury,  the  fugitive  slave  bill  cannot  be 
executed  in  Massachusetts,  not  in  America,  without  reviving  the 
worst  despotism  of  the  worst  of  the  Stuarts ;  not  without  bringing 
Twysden  and  .Tones  and  Kelyng  on  the  Bench ;  no,  not  without 
Saunders  and  Finch,  and  Jeflreys  and  Scroggs! 

Gentlemen,  such  was  Judge  Curtis's  charge.  I  have  been  told  it 
was  what  might  have  been  expected  from  the  general  character  and 
previous  conduct  of  the  man  ;  but  I  confess  it  did  surprise  me :  it 
was  foolish  as  it  was  wicked  and  tyrannical.  But  it  all  came  to 
nought. 

F'or,  ahis!  there  was  a  grand-jury,  and  the  Salmonean  thunder  of 
the  fugitive  slave  bill  judge  fell  harmless  —  quenched,  conquered,  dis- 
graced, and  brutal,  —  to  the  ground.  Poor  fugitive  slave  bill  Court! 
It  can  only  gnash  its  teeth  against  freedom  of  speech  in  Fanueil 
Hail;  only  bark  and  yelp  against  the  mialienable  rigiits  of  man,  and 

'  1  AVharton,  C3G;  Kolyng,  1-21,  70-77  ;  G  St.  Tr.  879. 


THE    TWO    GRAND-JURIES.  179 

howl  against  the  Higher  Law  of  God !  it  cannot  bite !  Poor,  imbe- 
cile, malignant  Court!  What  a  pity  that  the  fugitive  slave  bill  judge 
was  not  himself  the  grand-jury,  to  order  the  indictment  I  what  a 
shame  that  the  attorney  was  not  a  petty  jury  to  convict  I  Then  New 
England,  like  Old,  might  have  had  her  "  bloody  assizes,"  and  Boston 
streets  might  have  streamed  with  the  heart's  gore  of  noble  men  and 
w^omen ;  and  human  heads  might  have  decked  the  pinnacles  all 
round  the  town ;  and  Judge  Curtis  and  Attorney  Hallett  might  have 
had  their  j)lace  with  Judge  Jeffreys  and  John  Boilman  of  old.  What 
a  pity  that  we  have  a  grand-jury  and  a  traverse  jury  to  stand  between 
the  malignant  arm  of  the  Slave-hunter  and  the  heart  of  you  and 
me  !  ^ 

The  grand-jury  found  no  bill  and  were  discharged.  In  a  Fourth  of 
July  Sermon  "  Of  the  Dangers  which  Threaten  the  Rights  of  Man  in 
A  merica,"  I  said  :  — 

"  Perhaps  the  Court  Avill  try  again,  and  find  a  more  pliant  Grand- Jury,  easier  to  in- 
timidate. Let  me  suggest  to  the  Court  that  the  next  time  it  should  pack  its  Jury  from 
the  Marshal's  'Guard.'  Then  there  will  be  Unity  of  Idea;  of  action  too,  —  the 
Court  a  figure  of  equilibrium." 

The  audacious  Grand-Jury  was  discharged.  A  new  one  was  sum- 
moned ;  this  time  it  was  constructed  out  of  the  right  material.  Before 
that.  Gentlemen,  we  had  had  the  Judge  or  his  kinsmen  writing  for  the 
fugitive  slave  bill  in  the  newspapers ;  getting  up  public  meetings  in 
behalf  of  man-stealing  in  Boston ;  writing  letters  in  support  of  the 
same;  procuring  opinions  in  favor  of  the  constitutionality  of  the 
fugitive  slave  bill ;  nay,  kidnapping  men  and  sending  them  into  eternal 
bondage,  and  in  the  newspapers  defending  the  act ;  but  we  had  none 
of  them  in  the  Jury  box.  On  the  new  Grand-Jury  appeared  Mr. 
William  W.  Greenough,  the  brother-in-law  of  Hon.  Judge  Curtis  — 
each  married  a  daughter  of  Mr.  Charles  P.  Curtis.  Mr.  Greenough 
"  was  very  active  in  his  endeavors  to  procure  an  indictment "  against 
me ;  and  a  bill  was  found. 

How  came  the  Brother-in-law  of  the  Judge  on  the  Grand-Jury 
summoned  to  punish  men  who  spoke  against  kidnapping?  Gentle- 
men of  the  Jury,  I  do  not  know.  Of  course  it  was  done  honestly ; 
nobody  suspects  the  Mayor  of  Boston  of  double-dealing,  of  intrigue, 
or  of  any  indirection !  Of  course  there  was  no  improper  influence 
used  by  the  Marshal,  or  Mr.  Curtis,  or  Mr.  Hallett,  who  had  all  so 
much  at  stake ;  of  course  Mr.  Greenough  "  did  not  wish  to  be  on  the 
Jury ; "  of  course  Judge  Curtis  "  was  very  sorry  he  was  there,"  and 
of  course  "  all  the  family  was  sorry  I "     Of  course    "  he  went  and 

1  2  Parker's  Additional,  p.  281. 


180  UNITED  STATES  VS.   THEODORE  PARKER. 

asked  Judge  Sprague  to  excuse  him,  and  the  Judge  would 'nt  let  him 
offi "  Well,  Gentlemen,  I  suppose  it  was  a  "  miracle ;  "  such  a  mira- 
cle as  delivered  the  old  or  the  new  Shadrach ;  a  "  singular  coinci- 
dence ; "  a  "  very  remarkable  fact."  You  will  agree  with  me,  Gentle- 
men, that  it  was  a  ver?/  remarkable  fact.  In  all  the  judicial  tyranny 
I  have  related,  we  have  not  found  a  case  before  in  which  the  judge 
had  his  brother  on  the  Grand-Jury.  Even  Kelyng  affords  no  prece- 
dent for  that. 

Last  summer  I  met  Mr.  Greenough  in  a  Bookstore  and  saluted  him 
as  usual ;  he  made  no  return  to  my  salutation,  but  doubled  up  his 
face  and  went  out  of  the  shop!  That  was  the  impartial  Grand-Ju- 
ror, who  took  the  oath  to  "  present  no  man  for  envy,  hatred,  or 
malice." 

"  After  the  impanelling  of  the  new  Grand-Jury,"  —  I  am  reading 
from  a  newspaper,^  "Judge  Curtis  charged  them  in  reference  to  their 
duties  at  considerable  length.  In  regard  to  the  Burns  case  he  read 
the  law  of  1790  respecting  opposition  to  the  United  States  Marshals 
and  their  deputies  while  in  discharge  of  their  duty,  enforcing  the  laws 
of  the  United  States,  and  referred  for  further  information  as  to  the 
law  upon  the  point  to  his  charge  delivered  at  a  previous  term  of  the 
Court,  and  now  in  the  possession  of  the  District  AtlorneyP  Thus 
he  delegated  the  duty  of  expounding  the  law  to  a  man  who  is  not  a 
judicial  officer  of  the  United  States. 

Gentlemen  of  the  Jury,  look  at  the  facts.  I  am  indicted  by  a 
Grand-Jury  summoned  for  that  purpose  after  one  Grand-Jury  — 
which  had  been  drawn  before  the  kidnapping  of  Mr.  Burns  —  had 
refused  to  find  a  bill ;  a  member  of  the  family  which  has  been  so  dis- 
tinguished for  kidnapping  ever  since  1832,  the  Brother-in-law  of  the 
Judge,  is  made  one  of  that  Grand-Jury ;  he  is  so  hostile  and  malig- 
nant as  to  refuse  my  friendly  salutation  when  offered  as  usual ;  and 
on  the  jury  is  "most  active  of  all  in  his  efibrts  to  procure  an  indict- 
ment," so  that  "  but  for  his  efforts,"  as  one  of  the  Grand-Jury  informed 
me,  "no  bill  would  have  been  found  that  time;"  and  "it  was  obvious 
that  an  outside  influence  affected  him."  Out  of  court  Mr.  Hal- 
lett,  it  is  said,  jocosely  offers  to  bet  ten  dollars  that  he  "will  get 
Mr.  Parker  indicted."  I  am  to  be  tried  before  two  judges  deeply 
committed  tt)  the  Slave  Power,  now  fiercely  invading  our  once  free 
soil;  they  owe  their  appointment  to  their  hostility  against  Freedom. 
Twenty  years  ago,  in  the  Old  Cradle  of  Liberty,  Mr.  Sprague  could 
find  for  Washington  no  epithet  so  endearing  as  "  That  Slave- 
holder;" he  d(!fended  Slavery  with  all  his  legal  learning,  all  his  per- 
sonal miglit.  Yes,  wlien  other  weapons  failed  him  he  extemporized 
a  new  gospel,  and  into  the  mouth  of  Jesus  of  Nazareth,  —  who  said, 

^  Evening  Traveller,  Oct.  IG. 


THE  COURT  THAT  DENIES  THE  LAW  OF  GOD.  181 

"  Thou  shalt  love  thy  Neighbor  as  thyself,"  and  pointed  out  the  man 
who  had  "fallen  among  thieves"  as  neighbor  to  the  Samaritan  — 
he  put  this  most  unchristian  precept,  "  Slaves,  obey  your  masters  I  " 
Nay,  only  four  years  ago,  in  this  very  Court,  he  charged  the  jury  that 
if  they  thought  there  was  a  contradiction  between  the  Law  of  God 
and  the  Statutes  of  men  they  must  "  obey  both." 

Gentlemen,  the  other  judge,  Mr.  Curtis,  began  his  career  by  asking 
the  Supreme  Court  of  Massachusetts  to  restore  Slavery  to  Lexington 
and  Bunker  Hill ;  he  demanded  that  our  own  Supreme  Court  should 
grant  all  that  wickedness  which  Toombs  and  Hangman  Foote,  and 
Atchison  and  Stringfellow,  and  Grier  and  Kane  have  since  sought  to 
perpetuate !  He  denied  the  existence  of  any  Law  of  God  to  control 
the  Court,  there  is  nothing  but  the  Statutes  of  men ;  and  declared 
"  Slavery  is  not  immoral ; "  Massachusetts  may  interfere  actively  to 
establish  it  abroad  as  well  as  at  home.  In  Faneuil  Hall,  in  a  meet- 
ing which  he  and  his  kinsmen  had  gathered  and  controlled,  a  meeting 
to  determine  upon  kidnapping  the  citizens  of  Boston,  he  charged  me 
with  perjury,  asked  a  question,  and  did  not  dare  listen  to  my  reply  I 
Gentlemen,  it  is  a  very  proper  Court  to  try  me.  A  fugitive  slave  bill 
Court  —  with  a  fugitive  slave  bill  Attorney,  a  fugitive  slave  bill  Grand - 
Jury,  two  fugitive  slave  bill  Judges  —  which  scoffs  at  the  natural  law 
of  the  Infinite  God,  is  a  very  suitable  tribunal  to  try  a  Minister  of  the 
Christian  religion  for  defending  his  own  parishioners  from  being  kid- 
napped, defending  them  with  a  word  in  Faneuil  Hall ! 

"  No  tyranny  so  secure,  —  none  so  intolerable,  —  none  so  danger- 
ous, —  none  so  remediless,  as  that  of  Executive  Courts."  "  This  is  a 
truth  all  nations  bear  witness  to  —  all  history  confirms."  These  were 
the  words  of  Josiah  Quincy,  Jr.,  in  1772. —  Gentlemen,  in  1855  you 
see  how  true  they  are  !  "  So  sensible  are  all  tyrants  of  the  import- 
ance of  such  courts  —  that  to  advance  and  establish  their  system  of 
oppression,  they  never  rest  imtil  they  have  completely  corriqited  or 
bought  the  judges  of  the  land.  I  could  easily  show  that  the  most  deep 
laid  and  daring  attacks  upon  the  rights  of  a  people  might,  in  some 
measure,  be  defeated,  or  evaded  by  upright  judicatories  ;  bad  laws 
with  good  judges  make  little  progress."  ^ 

But  Gentlemen,  —  when  the  fugitive  slave  bill  is  "/«?/;,"  when  the 
judges  are  selected  for  their  love  of  Slavery  and  their  hatred  of  free- 
dom —  men  who  invent  Scripture  to  justify  bondage,  or  who  as  Law- 
yers beseech  the  courts  to  establish  Slavery  in  Massachusetts;  who 
declare  it  is  not  immoral,  that  it  may  be  the  duty  of  Massachusetts  to 
interfere  actively  and  establish  slavery  abroad,  nay,  that  there  is  no 
morality  but  only  legality,  the  statute  the  only  standard  of  right  and 

*  Quinov's  Quincy,  68. 

16 


182  UNITED    STATES   VS.   THEODOKE   PARKER. 

wrong  —  what  are  you  to  expect?  What  you  see  in  Philadelphia, 
New  York ;  aye,  in  Boston  at  this  hour.  I  will  add  with  Mr.  Quincy, 
"  Is  it  possible  this  should  not  rouse  us  and  drive  us  not  to  desperation 
but  to  our  duty !  The  blind  may  see  ;  the  callous  must  feel ;  the 
spirited  will  act."  ^ 

It  would  be  just  as  easy  for  the  Judge  to  make  out  divers  other 
crimes  from  my  words,  as  to  construct  a  misdemeanor  therefrom.    To 
charge  me  with   "treason,"  he  has  only  to  vary  a  few  words  and 
phrases ;  to  cite  Chase,  and  not  Judge  Parker,  and  to  refer  to  other 
passages  of  Kelyng's  Reports.     James  II.'s  judges  declared  it  was 
treason  in  the  seven  Bishops  to  offer  their  petition  to  the  King.     Mr. 
Webster  said,  it  is  only  the  "clemency  of  the  Government  which 
indicted  the  Syracuse  rescuers  for  misdemeanors  and  not  for  a  capi- 
tal crime!"     How  easy  for  a  fugitive  slave  bill  judge  to  hang  men 
for  a  word  against  his  brother  kidnapper  —  if  there  were  no  jury;  if, 
like  the  New  York  sheriff  in  1735,  he  could  order  "  his  own  negro  "  to 
do  it  I     Here  is  a  remarkable  case   of  constructive  crime,  worthy  of 
this  Honorable   Court.     It  is  the  famous  case  of  Dux  v.  Cunrade  et 
Boracio.    Honorable  Judge  Dogberry  thus  delivered  his  charge  to  the 
Grand  Inquest,  "  Masters,   I  charge  you  accuse  these  men,"  —  one 
police-man  testified  that  Conrade  said  "  that  Don  John,  the  prince's 
Brother,  was  a  villain^     Judge  Dogberry  ruled,  "  This  is  flat  perjury 
to  call  a  prince's  Brother,  vUlain."     The  next  member  of  the  Mar- 
shal's guard  deposed  that  Boracio  had  said,  "  That  he  had  received 
a  thousand  ducats  of  Don  John  for  accusing  the  Lady  Hero  wrong- 
fully."    Chief  Justice  Dogberry  decided,  "  Flat  Burglary  as  ever  was 
committed."     Sentence  accordingly.^ 

Gentlemen,  the  indictment  is  so  roomy  and  vague,  that  before  I 
came  into  court,  I  did  not  know  what  special  acts  of  mine  would  be 
brought  up  against  me  —  for  to  follow  out  the  Judge's  charge,  all  my 
life  is  a  series  of  constructive  misdemeanors.  Nay,  I  think  my  ' 
mother  —  the  violet  has  bloomed  over  that  venerable  and  well-beloved 
head  for  more  than  thirty  summers  now  —  I  think  my  mother  might 
be  indicted  for  constructive  treason,  only  for  bearing  me,  her  youngest 
son.  Certainly,  it  was  "  obstructing  an  officer,"  and  in  "  mis- 
demeanors all  are  principals."  I  have  committed  a  great  many  mis- 
demeanors; all  my  teachings  evince  an  express  liking  for  Piety,  for 
•Justice,  for  Liberty  ;  all  my  life  is  obstructing,  opposing,  and  resisting 
the  fugitive  slave  bill  Court,  its  Commissioners,  its  Judges,  its  Mar- 
shals and  its  Marshal's  guard.  Gentlemen  of  the  jury,  you  are  to 
judge  me.     Look  at  some  of  my  actions  and  some  of  my  words. 

'  Gazette,  Feb.  10,  1772.  ^  2  Singer's  Shakspcarc,  192. 


MR.    PARKEll'S    SPEECHES   AGAINST   THE   FUGITIVE    SLAVE   BILL.      183 

In  1850,  on  the  25th  of  March,  a  fortnight  after  Mr.  Webster  made 
his  speech  against  Humanity,  there  was  a  meeting  of  the  citizens  of 
Boston,  at  Faneuil  Hall ;  Gentlemen,  I  helped  procure  the  meeting. 
First,  I  tried  to  induce  the  leading  Whigs  to  assemble  the  people. 
No,  that  could  not  be  done;  "  the  Bill  would  not  pass,  there  was  no 
danger!"  Then  I  tried  the  leading  FreeSoilers;  "  No,  it  was  not 
quite  time,  and  we  are  not  strong  enough."  At  last  the  old  aboli- 
tionists came  together.  Mr.  Phillips  made  a  magnificent  speech. 
Here  arc  some  things  which  I  also  said. 

"  There  were  three  fugitives  at  my  house  the  other  night.  Ellen  Craft  was  one  of 
them.  You  all  know  Ellen  Craft  is  a  slave  ;  she,  with  her  husband,  fled  from  Georgia 
to  Pliiladelphia,  and  is  here  before  us  now.  She  is  not  so  dark  as  Mr.  Webster  him- 
self, if  any  of  you  think  freedom  is  to  be  dealt  out  In  proportion  to  the  whiteness  of  the 
skin.  If  Mason's  bill  passes,  I  might  have  some  miserable  postmaster  from  Texas  or 
the  District  of  Columbia,  some  purchased  agent  of  Messrs.  Bruin  &  Hill,  the  great 
slave-dealers  of  the  Capital,  have  him  here  in  Boston,  take  Ellen  Craft  before  the 
caitiif.  and  on  his  decision  hurry  her  ofi"  to  bondage  as  cheerless,  as  hopeless,  and  as 
irremediable  as  the  grave  ! 

"  Let  me  interest  you  in  a  scene  which  might  happen.  Suppose  a  poor  fugitive, 
•wrongfully  held  as  a  slave  —  let  it  be  Ellen  Craft — has  escaped  from  Savannah  in 
some  northern  ship.  No  one  knows  of  her  presence  on  board  ;  she  has  lain  with  the 
cargo  in  the  hold  of  the  vessel.  Harder  things  have  happened.  Men  have  journeyed 
hundreds  of  miles  bent  double  in  a  box  half  the  size  of  a  coffin,  journeying  towards 
freedom.  Suppose  the  ship  comes  up  to  Long  Wharf,  at  the  foot  of  State  Street. 
Bulk  is  broken  to  remove  the  cargo ;  the  Avoman  escapes,  emaciated  with  hunger, 
feeble  from  long  confinement  In  a  ship's  hold,  sick  with  the  tossing  of  the  heedless  sea, 
and  still  further  etiolated  and  blanched  with  the  mingling  emotions  of  hope  and  fear. 
She  escapes  to  land.  But  her  pursuer,  more  remorseless  than  the  sea,  has  been  here 
beforehand ;  laid  his  case  before  the  official  he  has  brought  with  him,  or  purchased 
here,  and  claims  his  slave.  She  runs  for  her  life,  fear  adding  wings-  Imagine  the 
scene  —  the  flight,  the  hot  pursuit  through  State  Street,  Merchants'  Row  —  your 
magistrates  In  hot  pursuit.  To  make  the  irony  of  nature  still  more  complete,  let  us 
suppose  this  shall  take  place  on  some  of  the  memorable  days  in  the  history  of 
America  —  on  the  19th  of  xlpril,  when  our  fathers  first  laid  down  their  lives  '  in  the 
sacred  cause  of  God  and  their  country  ;'  on  the  17th  of  June,  the  22d  of  December, 
or  on  any  of  the  sacramental  days  in  the  long  sad  history  of  our  struggle  for  our  own 
freedom  !  Suppose  the  weary  fugitive  takes  refuge  In  Faneuil  Hall,  and  here,  in  the 
old  Cradle  of  Liberty,  In  the  midst  of  Its  associations,  under  the  eye  of  Samuel  Adams, 
the  bloodhounds  seize  their  prey  !  Imagine  Mr.  Webster  and  Mr.  WInthrop  looking 
on,  cheering  the  slave-hunter,  intercepting  the  fugitive  fleeing  for  her  life.  Would 
not  that  be  a  pretty  spectacle  ? 

"  Propose  to  support  that  bill  to  the  fullest  extent,  with  all  Its  provisions  !  Hldlculous 
talk !  Does  Mr.  "Webster  suppose  that  such  a  law  could  be  executed  In  Boston  ?  that 
the  people  of  IMassachusetts  will  ever  return  a  single  fugitive  slave,  under  such  an  act 
as  that  V  Then  he  knows  his  constituents  very  little,  and  proves  that  he  needs  "  In- 
struction." 

"  Perpetuate  Slavery,  we  cannot  do  it.  Nothing  will  save  it  It  is  girt  about  by  a 
ring  of  fire  which  daily  grows  narrower,  and  sends  terrible  sparkles  into  the  very 
centre  of  the  shameful  thing.  '  Joint  resolutions  '  cannot  save  it;  annexations  cannot 
save  It  —  not  If  we  reanuex  all  the  West  Indies  •   delinquent  representatives  cannot 


184  UNITED    STATES    VS.   THEODORE   PARKER. 

save  it ;  uniiistructed  senators,  refusing  instructions,  cannot  save  it,  no,  not  with  all 
their  logic,  all  their  elo(iuence,  which  sautes  as  an  earthquake  smites  the  sea.  No, 
slavery  cannot  be  saved ;  by  no  compromise,  no  non-intervention,  no  IMason's  Bill  in 
the  Senate.  It  cannot  be  saved  in  this  age  of  the  world  until  you  nullify  every  ordi- 
nance of  nature,  until  you  repeal  the  will  of  God,  and  dissolve  the  union  He  has  made 
between  righteousness  and  the  welfare  of  a  people.  Then,  when  you  displace  God 
from  the  throne  , of  the  world,  and  instead  of  His  eternal  justice,  reenact  tlie  will  of 
the  Devil,  then  you  may  keep  Slavery  ;  keep  it  for  ever,  keep  it  in  peace.  Not 
till  then. 

"  The  question  is,  not  if  slavery  is  to  cease,  and  soon  to  cease,  but  shall  it  end  as  it 
ended  in  Massachusetts,  in  New  Hampshire,  in  Pennsylvania,  in  New  York  ;  or  shall 
it  end  as  in  St.  Domingo  ?  Follow  the  counsel  of  Mr.  Webster  —  it  will  end  in  fire 
and  blood.  God  forgive  us  for  our  cowardice,  if  we  let  it  come  to  this,  that  three 
millions  or  thirty  millions  of  degraded  human  beings,  degraded  by  us,  must  wade 
through  slaughter  to  their  unalienable  rights."  ^ 

Gentlemen,  that  speech  was  a  "  seditious  libel"  by  construction  I 
On  the  29th   of  May,  I  spoke  at  the  New  England  Anti-Slavery 
Convention,  and  said  :  — 

"  Let  us  not  be  deceived  about  the  real  question  at  issue.  It  is  not  merely  whether 
we  shall  return  fugitive  slaves  without  trial  by  jury.  "We  will  not  return  them  with 
trial  by  jury!  neither  'with  alacrity,' nor  with  the  'solemnity  of  judicial  proceed- 
ings!' It  is  not  merely  whether  slavery  shall  be  extended  or  not.  By  and  by  there 
■will  be  a  political  party  with  a  wider  basis  than  the  free  soil  party,  who  will  declare 
that  the  nation  itself  must  put  an  end  to  slavery  in  the  nation  ;  and  if  the  Constitution 
of  the  United  States  will  not  allow  it,  there  is  another  Constitution  that  will.  Then 
the  title.  Defender  and  expounder  of  the  Constitution  of  the  United  States,  will  give 
way  to  this,  — '  Defender  and  expounder  of  the  Constitution  of  the  Universe,'  and  we 
shall  reaffirm  the  ordinance  of  nature,  and  reenact  the  will  of  God.  You  may  not 
live  to  see  it,  Mr.  President,  nor  I  live  to  see  it ;  but  it  is  written  on  the  iron  leaf  that 
it  must  come ;  come,  too,  before  long.  Then  the  speech  of  Mr.  Webster,  and  the 
defence  thereof  by  Mr.  Stuart,  the  letter  of  the  retainers  and  the  letters  of  the  retained, 
will  be  a  curiosity ;  the  conduct  of  the  whigs  and  democrats  an  amazement,  and  the 
peculiar  institution  a  proverb  amongst  all  the  nations  of  the  earth.  In  the  turmoil  of 
party  politics,  and  of  personal  controversy,  let  us  not  forget  continually  to  move  the 
previous  question,  whether  Freedom  or  Slavery  is  to  prevail  in  America.  There  is 
no  attribute  of  God  which  is  not  on  our  side  ;  because,  in  this  matter,  we  are  on  the 
side  of  God."" 

After  the  death  of  General  Taylor  on  the  14th  of  July,  I  lifted  up 
my  voice  in  a  funeral  sermon  thus:  — 

"If  he  could  speak  to  us  from  his  present  position,  methinks  he  would  say:  Country- 
men and  friends  !  You  see  hoAv  little  it  availed  you  to  agitate  the  land  and  put  a  little 
man  in  a  great  place.  It  is  not  the  hurrah  of  parties  that  will  '  save  the  Union,'  it  is 
not  'great  men.'  It  is  only  Justice.  Remember  that  Atheism  is  not  the  first  principle 
of  a  Republic;  rcmcmb(!r  there  is  a  law  of  (Jod,  the  higher  law  of  the  universe,  the 
Everlasting  Right :  I  thought  so  once,  and  now  I  know  it.     Remember  that  you  are 

1  2  Occasionul  Siiceclies,  IG'l,  ICO,  and  172.  ^  Ibid,  207,  208. 


THE   FUGITIVE   SLAVE   BILL   AND   THE   LAW   OF   GOD.  185 

accountable  to  God  for  all  things;  that  you  owe  justice  to  all  men,  the  black  not  less 
than  the  white ;  that  God  will  demand  it  of  you,  proud,  wicked  nation,  careful  only  of 
your  gold,  forgetful  of  God's  high  law !  Before  long  each  of  you  shall  also  come  up 
before  the  Eternal.  Then  and  there  it  will  not  avail  you  to  have  compromised  truth, 
justice,  love,  but  to  have  kept  them.  Righteousness  only  is  the  salvation  of  a  State ; 
that  onl}'  of  a  man."  ^ 

All  that  was  before  the  bill  passed,  but  how  easy  it  would  be  for 
Judge  Jeffreys  or  Judge  Curtis,  Judge  Sprague  or  Judge  Scroggs,  to 
construct  it  into  a  "  misdemeanor,"  "  resisting  an  oflTicer  I " 

After  the  fugitive  slave  bill  passed,  on  the  22d  of  September,  1850,  not 
forty-eight  hours  after  the  Judge's  friends  had  fired  their  jubilant  can- 
non at  the  prospect  of  kidnapping  the  men  who  wait  upon  their  tables, 
I  preached  a  "  Sermon  of  the  Function  and  Place  of  Conscience  in 
relation  to  the  Laws  of  Man,  a  sermon  for  the  times."     I  said  this:  — 


"If  a  man  falls  into  the  water  and  is  in  danger  of  di-owning,  it  is  the  natural  duty  of 
the  bystanders  to  aid  in  pulling  him  out,  even  at  the  risk  of  wetting  their  garments. 
We  should  think  a  man  a  coward  who  could  swim,  and  would  not  save  a  drowning  girl 
for  fear  of  spoiling  his  coat.  lie  would  be  indictable  at  common  law.  If  a  troop  of 
wolves  or  tigers  were  about  to  seize  a  man,  and  devour  him,  and  you  and  I  could  help 
him,  it  would  be  our  duty  to  do  so,  even  to  peril  our  own  limbs  and  life  for  that  pur- 
pose. If  a  man  undertakes  to  murder  or  steal  a  man,  it  is  the  duty  of  the  bystanders 
to  help  their  brother,  who  is  in  peril,  against  wrong  from  the  two-legged  man,  as  much 
as  against  the  four-legged  beast.  But  suppose  the  invader  who  seizes  the  man  is  an 
officer  of  the  United  States,  has  a  commission  in  his  pocket,  a  warrant  for  his  deed  in 
his  hand,  and  seizes  as  a  slave  a  man  who  has  done  nothing  to  alienate  his  natural 
rights  —  does  that  give  him  any  more  natural  right  to  enslave  a  man  than  he  had  be- 
fore ?     Can. any  piece  of  parchment  make  right  wrong,  and  wrong  right? 

"  The  fugitive  has  been  a  slave  before :  does  the  wrong  you  committed  yesterday, 
give  you  a  natural  right  to  commit  wrong  afresh  and  continually  ?  Because  you  en- 
slaved this  man's  father,  have  you  a  natural  right  to  enslave  his  child  ?  The  same 
rio^ht  you  would  have  to  murder  a  man  because  you  butchered  his  father  first.  The 
ri<Tht  to  murder  is  as  much  transmissible  by  inheritance  as  the  right  to  enslave  !  It  is 
plain  to  me  that  it  is  the  natural  duty  of  citizens  to  rescue  every  fugitive  slave  from 
the  hands  of  the  marshal  who  essays  to  return  him  to  bondage ;  to  do  it  peaceably  if 
they  can,  forcibly  if  they  must,  but  by  all  means  to  do  it.  Will  you  stand  by  and  see 
your  countrymen,  your  fellow-citizens  of  Boston,  sent  off  to  slavery  by  some  commis- 
sioner ?  Shall  I  see  my  own  parishioners  taken  from  under  my  eyes  and  carried  back 
to  bondage,  by  a  man  whose  constitutional  business  it  is  to  work  wickedness  by  statute  ? 
Shall  I  never  lift  an  arm  to  protect  him?  When  I  consent  to  that,  you  may  call  me  a 
hlrelinn-  shepherd,  an  infidel,  a  wolf  in  sheep's  clothing,  even  a  defender  of  slave- 
catching  if  you  Avill ;  and  I  will  confess  I  was  a  poor  dumb  dog,  barking  always  at  the 
moon,  but  silent  as  the  moon  when  the  murderer  comes  near. 

"  I  am  not  a  man  who  loves  violence.  I  respect  the  sacredness  of  human  life.  But 
this  I  say,  solemnly,  that  I  will  do  all  in  my  power  to  rescue  any  fugitive  slave  from  the 
hands  of  any  officer  who  attempts  to  return  him  to  bondage.  I  will  resist  him  as 
gently  as  I  know  how,  but  with  such  strength  as  I  can  command ;  I  will  ring  the  bells, 

1  2  Occasional  Sermons,  239,  240. 

16* 


186  UNITED    STATES   VS.   THEODORE   PARKER. 

and  alarm  the  town;  I  will  serve  as  head,  as  foot,  or  as  hand  to  any  body  of  serious 
and  earnest  men,  who  will  go  with  me,  with  no  weapons  but  their  hands,  in  this  work. 
I  will  do  it  as  readily  as  I  would  lift  a  man  out  of  the  water,  or  pluck  him  from  the 
teeth  of  a  wolf,  or  snatch  him  from  the  hands  of  a  murderer.  What  is  a  fine  of  a  thou- 
sand dollars,  and  jailing  for  six  months,  to  the  liberty  of  a  man  ?  My  money  perish 
with  me,  if  it  stand  between  me  and  the  eternal  law  of  God.  I  trust  there  are  manly 
men  enough  in  this  house  to  secure  the  freedom  of  every  fugitive  slave  in  Boston,  with- 
out breaking  a  limb  or  rending  a  garment. 

"  One  thing  more  I  think  is  very  plain,  that  tlie  fugitive  has  the  same  natural  right 
to  defend  himself  against  the  slave-catcher,  or  his  constitutional  tool,  that  he  has  against 
a  murderer  or  a  wolf.  The  man  who  attacks  me  to  reduce  me  to  slavery,  in  that  mo- 
ment of  attack  alienates  his  right  to  life,  and  if  I  were  the  fugitive,  and  could  escape 
in  no  other  way,  I  would  kill  him  with  as  little  compunction  as  I  would  drive  a  mos- 
quito from  my  face.  It  is  high  time  this  was  said.  What  grasshoppers  we  are  before 
the  statute  of  men !  what  Goliaths  against  the  law  of  God !  What  capitalist  heeds 
your  statute  of  usury  when  he  can  get  illegal  interest  ?  How  many  banks  are  content 
with  six  per  cent,  when  money  is  scarce  ?  Did  you  never  hear  of  a  merchant  evading 
the  duties  of  the  custom-house  ?  AVhen  a  man's  liberty  is  concerned,  we  must  keep 
the  law,  must  we  ?  betray  the  wanderer,  and  expose  the  outcast  ?  '"  ^ 

Gentlemen,  you  know  what  Mr.  Commissioner  Hallett  said  of  such 
language,  said  at  the  Union  Meeting  in  Faneuil  Hall.^  He  was  only 
fugitive  slave  bill  commissioner  then ;  in  consequence  of  his  denial 
of  the  Higher  Law  of  God  he  is  now  fugitive  slave  bill  Attorney. 
You  know  what  Mr.  Curtis  said  of  the  Sermon ;  now,  in  consequence 
he  is  Judge  Curtis  —  the  fugitive  slave  bill  Judge. 

On  the  14th  of  October  there  was  another  meeting  at  Faneuil 
Hall  —  the  Freesoilers  came  that  time.  The  old  flame  of  Liberty 
burnt  anew  in  Charles  Francis  Adams,  who  presided.  Perhaps  some 
of  you  remember  the  prayer  of  the  venerable  Dr.  Lowell  which  lifted 
up  our  souls  to  the  "  Father  of  all  men !  "  I  proposed  the  appoint- 
ment of  a  "  Committee  of  Vigilance  and  Safety  to  take  such  measures 
as  they  shall  deem  just  and  expedient  to  protect  the  colored  people  of 
this  city  in  the  enjoyment  of  their  lives  and  liberties."  I  was  ap- 
pointed one  of  the  Committee,  and  subsequently  Chairman  of  the 
Executive  Committee  of  the  Vigilance  Committee ;  a  very  responsi- 
ble oIFice,  Gentlemen.  At  that  meeting  I  told  of  a  fugitive  from 
Boston,  who  that  day  had  telegraphed,  to  his  wife  here,  asking  if  it 
was  safe  for  him  to  come  back  from  Canada.  I  asked  the  meeting, 
"Will  you  let  him  come  back;  how  many  will  defend  him  to  the 
worst?"  "Here  a  hand  vote  was  taken,"  said  the  newspapers,  "  a 
forest  of  hands  was  held  up."  Surely  that  was  "evincing  an  express 
liking"  for  an  obstruction  of  the  kidnappers.  But  did  it  violate  the 
law  of  1790  ? 

All  this  yon  might  easily  have  known  before.  Here  is  something 
you  did  not  know.     That  Meeting,  its  Resolutions,  its  Speeches,  its 

^  2  Occasional  Sermons,  25C,  2D 7,  258.  '^  See  above,  p.  149. 


MARRIAGE  OF  WM.  AND  ELLEN  CRAFT  WITH  A  SWORD  j\XD  BIBLE.      187 

Action,  were  brought  up  in  the  cabinet  of  the  United  States  and  dis- 
cussed. Mr.  Webster,  then  Secretary  of  State,  ivislied  to  have  Mr. 
Adams,  president  of  the  meeting,  presented  to  the  g-rand-Jur//  and  in- 
dicted for  treason  I     But  the  majority  thought  otherwise. 

Gentlemen,  when  the  kidnappers  came  to  Boston  I  did  some  things 
of  wiiich  this  court  has  not  taken  notice,  and  so  I  will  not  speak  of  them 
now,  but  only  tell  your  grandchildren  of,  if  I  live  long  enough.  Others 
did  more  and  better  than  I  could  do,  however.  In  due  time  they  will 
have  their  reward.  One  thing  let  me  say  now.  When  the  two 
brothers  Curtis,  with  their  kinsfolk  and  coadjutors,  were  seeking  to 
kidnap  the  Crafts,  I  took  Ellen  to  my  own  house,  and  kept  her  there 
so  long  as  the  (Southern)  kidnappers  remained  in  the  city.  For  the 
first  time  I  armed  myself,  and  put  my  house  in  a  state  of  defence. 
For  two  weeks  I  wrote  my  sermons  with  a  sword  in  the  open  drawer 
under  my  inkstand,  and  a  pistol  in  the  flap  of  the  desk,  loaded,  ready, 
with  a  cap  on  the  nipple.  Commissioner  Curtis  said  "  a  process  was 
in  the  hands  of  the  marshal  .  .  ."  in  the  execution  of  which,  he 
mig-ht  be  called  upon  to  break  open  dwelling-hoy ses,  and  perhaps  to  take 
life,  by  quelling  resistance  actual  or  '•'■  threatened.^^  I  w^as  ready  for 
him.     I  knew  my  rights. 

I  went  also  and  looked  after  William  Craft.  I  inspected  his 
weapons;  "his  powder  had  a  good  kernel,  and  he  kept  it  dry  ;  his 
pistols  were  of  excellent  proof;  the  barrels  true,  and  clean,  the  trig- 
ger went  easy,  the  caps  would  not  hang  fire  at  the  snap.  I  tested  his 
poignard ;  the  blade  had  a  good  temper,  stiff  enough  and  yet  springy 
withal ;  the  point  was  sharp."  ^  After  the  immediate  danger  was 
over  and  Knight  and  Hughes  had  avoided  the  city,  where  they  had 
received  such  welcome  from  the  friends  of  this  Court,  such  was  the 
tone  of  the  political  newspapers  and  the  commercial  pulpit  that  Wil- 
liam and  Ellen  must  needs  flee  from  America.  Long  made  one  by 
the  Vv'^edlock  of  mutual  and  plighted  faith,  their  marriage  in  Georgia 
u^as  yet  "  null  and  void  "  by  the  laws  of  that  "  Christian  State."  I 
married  them  according  to  the  law  of  Massachusetts.  As  a  symbol 
of  the  husband's  peculiar  responsibility  under  such  circumstances,  I 
gave  William  a  Sword  —  it  lay  on  the  table  in  the  house  of  another 
fugitive,  where  the  wedding  took  place  —  and  told  him  of  his  manly 
duty  therewith,  if  need  were,  to  defend  the  life  and  liberty  of  Ellen. 
I  gave  them  both  a  Bible,  which  I  had  bought  for  the  purpose,  to  be 
a  symbol  of  their  spiritual  culture  and  a  help  for  their  soul,  as  the 
sword  was  for  their  bodily  life.  "  With  this  sword  I  thee  wed," 
suited  the  circumstances  of  that  bridal. 

Mr.  and  Mrs.  Craft  were  parishioners  of  mine,  and  besides  I  have 
been  appointed  "  minister  at  large  in  beha!f  of  all  fugitive  slaves  in 

'  1  Parker's  Additional  Speeches,  55. 


1S8  UNITED    STATES    VS.    THEODORE   PARKER. 

Boston."  I  have  helped  join  men  and  women  in  wedlock  according 
to  the  customs  of  various  sects  and  nations.  There  is  one  wedlock, 
a  sacrament,  but  many  forms.  Never  before  did  I  marry  two  lovers  with 
the  Sword  and  the  Bible  —  the  form  of  matrimony  for  fugitive  slaves: 
out  of  that  fact  perhaps  Mr.  Attorney  can  frame  an  indictment  that 
will  hold  water.  "  If  it  only  resists  lav;^  and  obstructs  its  officers," 
quoth  he,  "it  is  treason,  and  he  who  risks  it  must  risk  hanging 
for  it!" 

At  the  great  Union  meeting,  November  26,  when  Mr.  Curtis  said 
"  I  should  like  to  ask  the  Reverend  Gentleman  in  what  capacity  he 
expects  to  be  punished  for  his  perjury,''^  I  said,  "  Do  you  want  an  an- 
swer to  your  question.  Sir?"  No  doubt  that  was  obstructing  a 
(prospective)  "  officer,"  then  preparing  for  process.  How  easily  could 
Scroggs  make  a  "  misdemeanor,"  or  "  a  seditious  libel,"  out  of  that 
question  !     Allybone  wovild  call  it  "  treason,"  "  levying  war." 

Thirty-six  hours  after  the  Union  meeting,  on  Thanksgiving  day, 
28th  November,  1850,  in  a  "  Sermon  of  the  State  of  the  Nation,"  I 
said :  — 

"  I  have  sometimes  been  amazed  at  the  talk  of  men  who  call  on  us  to  keep  the  fugi- 
tive slave  law,  one  of  the  most  odious  laws  in  a  world  of  odious  laws  —  a  law  not  fit  to 
be  made  or  kept.  I  have  been  amazed  that  they  should  dare  to  tell  us  the  law  of  God, 
writ  on  the  heavens  and  our  hearts,  never  demanded  we  should  disobey  the  laws  of 
men  !  Well,  suppose  it  were  so.  Then  it  was  old  Daniel's  duty  at  Darius'  command 
to  "-ive  up  his  prayer;  but  he  prayed  three  times  a  day,  with  his  windows  up.  Then 
It  was  John's  and  Peter's  duty  to  forbear  to  preach  of  Christianity ;  but  they  said, 
'  Whether  It  be  right  in  the  sight  of  God  to  hearken  unto  you  more  than  unto  God, 
judge  ye.'  Then  it  was  the  duty  of  Ainram  and  Jochebed  to  take  up  their  new-born 
Moses  and  cast  him  into  the  Kile,  for  the  law  of  king  Tharoah,  commanding  It,  was 
*  constitutional,'  and  '  political  agitation '  was  discountenanced  as  much  in  Goshen  as  In 
Boston.  But  Daniel  did  not  obey  ;  John  and  Peter  did  not  fail  to  preach  Christianity  ; 
and  Amram  and  Jochebed  refused  '  passive  obedience '  to  the  king's  decree !  I  think 
it  will  take  a  strong  man  all  this  winter  to  reverse  the  judgment  which  the  world  has 
passed  on  these  three  cases.     But  it  is  '  innocent'  to  try. 

"  However,  there  is  another  ancient  case,  mentioned  in  the  Bible,  in  which  the  laws 
commanded  one  tiling  and  conscience  just  the  opposite.     Here  is  the  record  of  the 

law: 'Now  both  the  chief  priests  and  the  Pharisees  had  given  a  commandment,  that 

if  any  one  knew  where  he  [Jesus]  were,  he  should  show  It,  that  they  might  take  him.' 
Of  course,  It  became  the  official  and  legal  business  of  each  disciple  who  knew  where 
Christ  was,  to  make  it  known  to  the  authorities.  No  doubt  James  and  John  could 
leave  all  and  follow  him,  with  others  of  the  people  who  knew  not  the  law  of  Moses, 
and  were  accursed ;  nay,  the  women,  Martha  and  JIary,  could  minister  unto  him  of 
their  substance,  could  wash  his  feet  with  their  tears,  and  wipe  them  witli  the  hairs  of  their 
head.  They  did  it  gladly,  of  their  own  freewill,  and  took  pleasure  therein,  I  make  no 
di)ulit.  There  w<us  no  merit  in  that  —  'Any  man  can  perform  an  agreeable  duty.' 
But  there  was  found  one  disciple  who  could  'perform  a  disagreeable  duty.'  He  went, 
perhaps  '  with  alacrity,'  and  -betrayed  his  Saviour  to  the  marshal  of  the  district  of 
Jerusalem,  who  was  calh'd  a  centurion.  Had  he  no  afTectlon  for  Jesus ?  No  doubt; 
but  he  could  coiKjucr  his  prejudices,  while  Mary  and  John  could  not. 


SERMON   AGAINST   KIDNAPPING.  189 

". Tildas  Tscariot  has  rather  a  bad  name  in  the  Christian  world:  he  is  called  'The 
son  of  perdition,'  in  the  New  Testament,  and  his  conduct  is  reckoned  a  '  transgres- 
sion;' nay,  it  is  said  the  devil  'entered  into  liim,'  to  cause  this  hideous  sin.  But  all 
this  it  seems  was  a  mistake  ;  certainly,  if  we  are  to  believe  our  'republican'  lawyers 
and  statesmen,  Iscariot  only  fulfilled  his  '  constitutional  obligations.'  It  was  only  '  on 
that  point,'  of  betraying  his  Saviour,  that  the  constitutional  law  required  him  to  have 
any  thing  to  do  with  Jesus.  He  took  his  'thirty  pieces  of  silver' — about  fifteen  dol- 
lars; a  Yankee  is  to  do  it  for  ten,  having  fewer  prejudices  to  con([uer  —  it  was  his  legal 
fee,  for  value  received.  True,  the  Christians  thought  it  was  '  The  wages  of  iniquity,' 
and  even  the  Pharisees  —  who  commonly  made  the  commandment  of  (Jod  of  none  eifect 
by  their  traditions  —  dared  not  defile  the  temple  with  this  'price  of  blood;'  but  it  was 
honest  money.  Yes,  it  Avas  as  honest  a  fee  as  any  American  commissioner  or  deputy  will 
ever  get  for  a  similar  service.  How  mistaken  we  are  !  Judas  Iscariot  is  not  a  traitor ! 
he  was  a  great  patriot ;  he  conquered  his  '  prejudices,'  performed  '  a  disagreeable  duty,' 
as  an  office  of  '  high  morals  and  high  principle  ; '  he  kept  the  '  law'  and  the  '  Constitu- 
tion,' and  did  all  he  could  to  '  save  the  Union  ; '  nay,  he  was  a  saint,  '  not  a  whit  behind 
the  very  chiefest  apostles.'  '  The  law  of  God  never  commands  us  to  disobey  the  law 
of  man.'     Sancte  Iscariofe  ora  pro  nobis. 

"  Talk  of  keeping  the  fugitive  slave  law !  Come,  come,  we  know  better.  Men  in 
New  England  know  better  than  this.  AVe  know  that  we  ought  not  to  keep  a  wicked 
law,  and  that  it  must  not  be  kept  when  the  laAv  of  God  forbids ! 

"  One  of  the  most  awful  spectacles  I  ever  saw,  was  this:  A  vast  multitude  attempt- 
ing, at  an  orator's  suggestion  [Hon.  IMr.  Hallett],  to  howl  down  the  '  Higher  law,'  and 
when  he  said,  Will  you  have  this  to  rule  over  you  ?  they  answered,  '  Never ! '  and 
treated  the  '  Higher  law'  to  a  laugh  and  a  howl !  It  was  done  in  Fanueil  Hall ;  under 
the  eyes  of  the  three  Adamses,  Hancock,  and  Washington ;  and  the  howl  rung  round 
the  venerable  arches  of  that  hall!  I  could  not  but  ask,  'Why  do  the  heathen  rage, 
and  the  people  imagine  a  vain  thing  ?  the  rulers  of  the  earth  set  themselves,  and  kings 
take  coun.sel  against  the  Lord  and  say.  Let  us  break  his  bands  asunder,  and  cast  off 
his  yoke  from  us.'  Then  I  could  not  but  remember  that  it  was  written,  '  He  that 
sitteth  in  the  heavens  shall  laugh ;  the  Lord  shall  have  them  in  derision.'  '  He  taketh 
up  the  isles  as  a  very  little  thing,  and  the  inhabitants  of  the  earth  are  as  grasshoppers 
before  Him.'  Howl  down  the  law  of  God  at  a  magistrate's  command!  Do  this  in  Bos- 
ton!     Let  us  remember  this  —  but  with  charit}'." 

"  I  do  not  believe  there  is  more  than  one  of  the  New  England  men  who  publicly 
helped  the  law  into  being,  but  would  violate  its  provisions ;  conceal  a  fugitive ;  share 
his  loaf  with  a  runaway ;  furnish  him  golden  wings  to  fly  with.  Nay,  I  think  it  would 
be  difficult  to  find  a  magistrate  in  New  England,  willing  to  take  the  public  odium  of 
doing  the  official  duty.  I  believe  it  is  not  possible  to  find  a  regular  jury,  who  will 
punish  a  man  for  harboring  a  slave,  for  helping  his  escape,  or  fine  a  marshal  or  com- 
missioner for  being  a  little  slow  to  catch  a  slave.  Men  will  talk  loud  in  public  meet- 
ings, but  they  have  some  conscience  after  all,  at  home.  And  though  they  howl  down 
the  '  Higher  law'  in  a  crowd,  yet  conscience  will  make  cowards  of  them  all,  when  they 
come  to  lay  hands  on  a  Christian  man,  more  innocent  than  they,  and  send  him  into 
slavery  for  ever !  One  of  the  commissioners  of  Boston  talked  loud  and  long,  last  Tues- 
day, in  favor  of  keeping  the  law.  When  he  read  his  litany  against  the  law  of  God, 
and  asked  if  men  would  keep  the  'Higher  law,'  and  got  'Never'  as  the  welcome,  and 
amen  for  response  —  it  seemed  as  if  the  law  might  be  kept,  at  least  by  that  commis- 
sioner, and  such  as  gave  the  responses  to  his  creed.  But  slave-hunting  Mr.  Hughes, 
who  came  here  for  two  of  our  fellow-worshippers,  in  his  Georgia  news[)aper,  tells  a 
different  story.  Here  it  is  from  the  '  Georgia  Telegraph,'  of  last  Friday.  '  I  called 
at  eleven  o-'clock  at  night,  at  his  [the  commissioner's]  residence,  and  stated  to  him  my 


190  UNITED    STATES    VS.    THEODORE    PARKER. 

business,  and  asked  him  for  a  warrant,  sajing  tliat  if  I  could  get  a  warrant,  I  could 
have  the  negroes  [William  and  Ellen  Craft]  arrested.  He  said  the  law  did  not  author- 
ize a  warrant  to  be  issued :  that  it  was  my  duty  to  go  and  arrest  the  negro  without  a 
warrant,  and  bring  him  before  him!'  This  is  more  than  I  expected.  'Is  Saul  among 
the  prophets  ? '  The  men  who  tell  us  that  the  law  must  be  kept,  God  willing,  or 
against  His  will  —  there  are  Puritan  fathers  behind  them  also;  Bibles  in  their  houses; 
a  Chi'ist  crucified,  whom  they  think  of;  and  a  God  even  in  their  world,  who  slumbers 
not,  neither  is  weary,  and  is  as  little  a  respecter  of  parchments  as  of  persons  !  They 
know  there  is  a  people,  as  well  as  politicians,  a  posterity  not  yet  assembled,  and  they 
would  not  like  to  have  certain  words  writ  on  their  tomb-stone.  '  Traitor  to  the  rights 
of  mankind,'  is  no  pleasant  epitaph.  They,  too,  remember  there  is  a  day  after  to-day ; 
aye,  a  forever;  and  'Inasmuch  as  ye  have  not  done  it  unto  one  of  the  least  of  these 
my  brethren,  ye  have  not  done  It  unto  me,'  Is  a  sentence  they  would  not  like  to  hear 
at  the  day  of  judgment."^ 

Gentlemen,  you  see  by  the  faces  of  this  Honorable  Court,  and  you 
know  by  what  these  honorable  functionaries  and  their  coadjutors  have 
done  out  of  its  limit,  how  much  I  was  mistaken  in  the  notion  that  no 
Boston  Commissioner  would  ever  kidnap  a  man !  Perhaps  you  will 
pardon  me  for  the  mistake.     I  will  soon  explain  it  by  a  quotation. 

After  the  rescue  of  Shadrach,  in  my  Sunday  prayer  1  publicly  gave 
God  the  thanks  of  the  congregation  for  the  noble  deed.  Perhaps  that 
was  a  crime.  I  think  Judge  Saunders  could  make  it  appear  that  I 
was  an  "  accessory  after  the  fact,"  and  then  Judge  Curtis  could  call 
the  offence  not  a  felony  but  a  "misdemeanor,"  and  "in  misdemean- 
ors all  are  principals."  Nay,  it  might  be  "levying  war"  "with  force 
and  arms." 

After  the  Hon.  Judge  Sprague  had  made  himself  glorious  by  charg- 
ing the  jury  "  to  obey  both"  the  will  of  God  and  the  laws  of  men, 
which  forbid  that  will ;  and  after  Commissioner  Curtis  had  kid- 
napped Mr.  Sims,  while  he  still  had  him  in  his  unlawful  jail,  on  Fast- 
day,  April  10,  1851,  I  preached  a  sermon  "  of  the  Chief  Sins  of  the 
People,"  and  said, — 

"  He  [.Judge  Sprague]  supposes  a  case  :  that  the  people  ask  him,  '  Which  shall  we 
obey,  the  law  of  man  or  the  will  of  God  ?  '  He  says,  '  I  answer,  obey  both.  The 
incompatibility  which  the  question  assumes  does  not  exist.' 

"  Sg,  then,  liere  is  a  great  general  rule,  that  between  the  '  law  of  man '  and  the  '  will 
of  God'  there  is  no  incompatibility,  and  we  must '  obey  both.'  Now  let  us  see  how 
this  rule  will  work. 

"  If  I  am  rightly  informed,  King  Ahab  made  a  law  that  all  the  Hebrews  should  serve 
Baal,  and  it  was  the  will  of  God  that  they  should  serve  the  Lord.  According  to  this 
rule  of  the  judge,  they  must '  obey  both.'  But  if  they  served  Baal,  they  could  not 
serve  tlic  Lord.  In  sudi  a  case,  '  what  is  to  be  done  ?  '  We  are  told  that  Elijah 
gathered  the  proiihcts  together  :  'and  lie  came  unto  all  the  people,  and  said,  How  long 
halt  ye?     if  I  he  Lnnl  \n:  (Jod,  follow  him;  but  if  Baal,  then  follow  him.'     Our  modern 

1  2  Tarkcr's  Occasional  Sermons,  pp.  298-800,  301,  302,  304,  305. 


SERMON   ON   THE    KIDNAPPING   OF  MR.    SIMS.  191 

prophet  says,  '  Obey  both.     Tiie  incompatibility  which  the  question  assumes  does  not 
exist.'     Such  is  the  (llirerence  between  Judge  P21ijah  and  Judge  Pelcg. 

"  Let  us  see  how  this  rule  will  work  in  otlier  cases;  how  you  can  make  a  compro- 
mise between  two  opposite  doctrines.  The  king  of  Egypt  commandi-d  the  Hebrew 
nurses,  '  When  you  do  the  ollice  of  a  midwife  to  tlie  Hebrew  women,  il"it  lie  a  son  ye 
shall  kill  him.'  I  suppose  it  is  plain  to  the  Judge  of  the  Circuit  Court  that  this  kind  of 
murder,  killing  the  new-born  infants,  is  against  '  the  will  of  God  ; '  but  it  is  a  matter  of 
record  that  it  was  according  to  '  the  law  of  man.'  Suppose  the  Hebrew  nurses  had 
come  to  ask  Judge  Sprague  for  his  advice.  He  must  have  said,  '  Obey  both ! '  His 
rule  is  a  universal  one. 

"  Another  decree  was  once  made,  as  it  is  said  in  the  Old  Testament,  tliat  no  man 
should  ask  any  .petition  of  any  God  for  thirty  days,  save  of  the  king,  on  penalty  of 
being  cast  into  the  den  of  lions.  Suppose  Daniel  —  I  mean  the  old  Daniel,  the 
prophet  —  should  have  asked  him,  AVhat  is  to  be  done  ?  Should  he  pray  to  Darius  or 
I)ray  to  GodV  '  Obey  both  !'  would  be  the  answer.  But  lie  cannot,  for  he  is  forbid  to 
pray  to  God.     We  know  what  Daniel  did  do. 

"The  elders  and  scribes  of  Jerusalem  commanded  the  Christians  not  to  speak  or  to 
teach  at  all  in  the  name  of  Jesus  ;  but  Peter  and  John  asked  those  functionaries, 
'  Whether  it  be  right  in  the  sight  of  God  to  hearken  unto  you  more  than  unto  God, 
judge  ye.'  Our  judge  must  have  said,  There  is  no  'incompatibility;  '  'obey  both  !  ' 
AVhat  '  a  comfortable  Scripture  '  this  would  have  been  to  poor  John  Bunyan  !  What 
a  great  ethical  doctrine  to  St.  Paul!  He  did  not  know  such  Christianity  as  that. 
Before  his  time  a  certain  man  had  said,  'No  man  can  serve  two  masters.'  But  there 
was  one  person  who  made  the  attempt,  and  he  also  is  eminent  in  history.  Here  was 
'  the  will  of  God,'  to  do  to  others  as  you  would  have  others  do  to  you  :  '  Love  thy  neif^h- 
bor  as  thyself.'  Here  is  the  record  of '  the  law  of  man  : '  '  Now  both  the  chief  priests 
and  the  Pharisees  had  given  a  commandment,  that,  if  any  man  knew  where  he  [Jesus] 
were,  he  should  show  it  that  they  might  take  him.'  Judas,  it  seems,  determined  to 
'  obey  both,'  — '  the  law  of  man '  and  '  the  will  of  God.'  So  he  sat  with  Jesus  at  the 
Last  Supper,  dipped  his  hand  in  the  same  dish,  and  took  a  morsel  from  the  hand  of 
Christ,  given  him  in  token  of  love.  All  this  he  did  to  obey  'the  will  of  God.'  Then 
he  went  and  informed  the  Commissioner  or  Marshal  where  Jesus  was.'  This  he  did  to 
obey  '  the  law  of  man.'  Then  he  came  back,  and  found  Christ,  —  the  agony  all  over, 
the  bloody  sweat  wiped  olT  from  his  brow  presently  to  bleed  again,  —  the  Angel  of 
Strength  there  with  him  to  comfort  liim.  He  was  arousing  his  sleeping  disciples  for 
the  last  time,  and  was  telling  them,  '  Pray,  lest  ye  enter  into  temptation.'  Judas  came 
and  gave  him  a  kiss.  To  the  eleven  it  seemed  tlie  friendly  kiss,  obeying  '  the  will  of 
God.'  To  the  Marshal  it  also  seemed  a  friendly  kiss, — obeying  '  the  law  of  man.' 
So,  in  the  same  act,  he  obeys  '  the  law  of  God '  and  'the  will  of  man,'  and  there  is  no 
'  incompatibility  ! ' 

"  Of  old  it  was  said, '  Thou  canst  not  serve  God  and  mammon.'  He  that  said  It,  has 
been  thought  to  know  something  of  morals,  —  something  of  religion. 

"  Till  the  fugitive  slave  law  was  passed,  we  did  not  know  what  a  great  saint  Lscarlot 
was.  I  think  there  ought  to  be  a  chapel  for  him,  and  a  day  set  apart  in  the  calendar. 
Let  him  have  his  chapel  in  the  navy  yard  at  Washington.  He  has  got  a  priest  there 
already.  And  for  a  day  in  the  calendar  —  set  apart  for  all  time  the  seventh  of 
March ! " 

"  Last  Thanksgiving  day,  I  said  it  would  be  difficult  to  find  a  magistrate  in  Boston 
to  take  the  odium  of  sending  a  fugitive  back  to  slavery.  I  believed,  after  all,  men  had 
some  conscience,  although  they  talked  about  its  being  a  duty  to  deliver  up  a  man  to 
bondage.  Pardon  me,  my  country,  that  I  rated  you  too  high!  Pardon  me,  town  of 
Boston,  that  I  thought  your  citizens  all  men !    Pardon  me,  lawyers,  that  I  thought  you 


192  UNITED    STATES   VS.   THEODORE   PARKER. 

had  been  all  born  of  mothers !  Pardon  me,  rudians,  who  kill  for  hire  !  I  thought  you 
had  some  animal  mercy  left,  even  in  your  bosom !  Pardon  me,  United  States'  com- 
missioners, marshals,  and  the  like,  I  thought  you  all  had  some  shame  !  Pardon  me,  my 
hearers,  for  such  mistakes.  One  commissioner  was  found  to  furnish  the  warrant  [Mr. 
George  T.  Curtis]  !  Pardon  me,  I  did  not  know  he  was  a  commissioner  ;  if  I  had,  I 
never  would  have  said  it ! 

"  Spirits  of  tyrants,  I  look  down  to  you !  Shade  of  Cain,  you  great  first  murderer, 
forgive  me  that  I  forgot  your  power,  and  did  not  remember  that  you  were  parent  of  so 
long  a  line !  And  you,  my  brethren,  if  hereafter  I  tell  you  that  there  is  any  limit  of 
meanness  or  wickedness  which  a  Yankee  will  not  jump  over,  distrust  me,  and  remind 
me  of  this  day,  and  I  will  take  it  back ! 

"  Let  us  look  at  the  public  conduct  of  any  commissioner  who  will  send  an  innocent 
man  from  Boston  into  slavery.  I  would  speak  of  all  men  charitably ;  for  1  know  how 
easy  it  is  to  err,  yea,  to  sin.  I  can  look  charitably  on  thieves,  prowling  about  in  dark- 
ness ;  on  rum-sellers,  Avliom  poverty  compels  to  crime ;  on  harlots,  who  do  the  deed  of 
shame  that  holy  woman's  soul  abhors  and  revolts  at ;  I  can  pity  the  pirate,  who  scours 
the  seas  doing  his  fiendish  crimes  —  he  is  tempted,  made  desperate  by  a  gradual  train- 
ing in  wickedness.  The  man,  bom  at  the  South,  owning  slaves,  who  goes  to  Africa 
and  sells  adulterated  rum  in  exchange  for  men  to  retail  at  Cuba,  —  I  cannot  understand 
the  consciousness  of  such  a  man ;  yet  I  can  admit  that  by  birth  and  by  breeding  he 
has  become  so  imbruted  he  knows  no  better.  Nay,  even  that  he  mc\y  perhaps  justify 
his  conduct  to  himself.  I  say  I  think  his  sin  is  not  so  dreadful  as  that  of  a  commissioner 
in  Boston  who  sends  a  man  into  slavery.  A  man  commits  a  murder,  inflamed  by  jeal- 
ousy, goaded  by  desire  of  great  gain,  excited  by  fear,  stung  by  malice,  or  poisoned  by 
revenge,  and  it  is  a  horrid  thing.  But  to  send  a  man  into  slavery  is  worse  than  to 
murder  him.  I  should  rather  be  slain  than  enslaved.  To  do  this,  inflamed  by  no  jeal- 
ousy, goaded  by  no  desire  of  great  gain,  —  only  ten  dollars !  —  excited  by  no  fear, 
stung  by  no  special  malice,  poisoned  by  no  revenge, — I  cannot  comprehend  that  in 
any  man,  not  even  in  a  hyena.  Beasts  that  raven  for  blood  do  not  kill  for  killing's 
sake,  but  to  feed  their  flesh.  Forgive  me,  O  ye  wolves  and  hyenas !  that  I  bring  you 
into  such  company.     I  can  only  understand  it  in  a  devil ! 

"  "When  a  man  bred  in  Massachusetts,  whose  Constitution  declares  that  '  All  men 
are  born  free  and  equal;'  within  sight  of  Faneuil  Ilall,  with  all  its  sacred  memories  ; 
within  two  hours  of  Plymouth  Kock ;  within  a  single  hour  of  Concord  and  Lexington ; 
in  sight  of  Bunker  Hill,  —  when  he  will  do  such  a  deed,  it  seems  to  me  that  there  is  no 
life  of  crime  long  enough  to  prepare  a  man  for  such  a  pitch  of  depravity ;  I  should 
think  he  must  have  been  begotten  in  sin,  and  conceived  in  iniquity,  and  been 
born  -'  with  a  dog's  head  on  his  shoulders ; '  that  the  concentration  of  the  villany  of 
whole  generations  of  scoundrels  would  hardly  be  enough  to  fit  a  man  for  a  deed  like 
this!" 

"  Last  Tluirsday  night,  —  when  odious  beasts  of  prey,  that  dare  not  face  the  light  of 
heaven,  prowl  through  the  woods,  —  those  rufiians  of  the  law  seized  on  their  brother 
man.  They  lie  to  the  bystanders,  and  seize  him  on  a  false  pretence.  There  is  their 
victim  —  they  hold  him  fast.  His  faithless  knife  breaks  in  his  hand ;  his  coat  is  rent  to 
pieces.  lie  is  the  slave  of  Boston.  Can  you  understand  his  feelings  ?  Let  us  pass  by 
that.  His  'trial!'  Shall  I  speak  of  that?  He  has  been  five  days  on  trial  for  more 
than  life,  and  has  not  seen  a  judge!  A  jury?  No,  —  only  a  commissioner!  O  jus- 
tice !     O  republican  America!     Is  this  the  liberty  of  Massachusetts  ? 

"  When;  sliall  I  find  a  parallel  with  men  who  will  do  such  a  deed,  —  do  it  in  Boston  ? 
I  will  open  the  tombs,  and  bring  up  most  hideous  tyrants  from  the  dead.  Come,  brood 
of  monsters,  let  me  bring  you  up  from  the  deep  damnation  of  the  graves  wherein  your 
hated  memories  continue  for  all  time  their  never-ending  rot.     Come,  birds  of  evil 


GEORGE   JEFFREYS   AND   THE   BOSTON   KIDXAPPERS.  193 

omen  !  come,  ravens,  vultures,  carrion-crows,  and  see  the  spectacle !  come,  see  the  meet- 
ing of  congenial  souls!  I  will  disturb,  disquiet,  and  bring  up  the  greatest  monsters  of 
the  human  race !  Tremble  not,  women ;  tremble  not,  children ;  tremble  not,  men  ! 
They  are  all  dead  !     They  cannot  harm  you  now !     Fear  the  living,  not  the  dead! 

"  Come  hither,  Herod  the  wicked !  Thou  that  didst  seek  after  that  young  child's 
life,  and  destroyedst  the  Innocents !  Let  me  look  on  thy  face  !  No;  go!  Thou  wert 
a  heathen  !  Go,  lie  with  the  Innocents  thou  hast  massacred.  Thou  art  too  good  for 
this  company  ! 

"Come,  Nero!  Thou  awful  Roman  Emperor!  Come  up!  No;  thou  wast  drunk 
withpov.'er!  schooled  in  Roman  depravity.  Thou  hadst,  besides,  the  example  of  thy 
fancied  gods !     Go,  wait  another  day.     I  will  seek  a  worser  man. 

"  Come  hither,  St.  Dominic  !  come,  Torquemada  !  —  Fathers  of  the  Inquisition  ! 
]Merciless  monsters,  seek  your  equal  here  !  No ;  pass  by  !  You  are  no  companions 
for  such  men  as  these  !  You  were  the  servants  of  atheistic  popes,  of  cruel  kings.  Go 
to,  and  get  you  gone.  Another  time  I  may  have  work  for  you,  —  not  now ;  lie  there 
and  persevere  to  rot.  You  are  not  yet  c^uite  wicked  and  corrupt  enough  for  this  com- 
parison.    Go,  get  ye  gone,  lest  the  sun  turn  back  at  sight  of  ye  ! 

"  Come  up,  thou  heap  of  wickedness,  George  Jeffreys  !  —  thy  hands  deep  purple  with 
the  blood  of  thy  murdered  fellow  men  !  Ah,  I  know  thee  !  awful  and  accursed  shade  ! 
Two  hundred  years  after  thy  death,  men  hate  thee  still,  not  without  cause  !  Let 
me  look  upon  thee !  I  know  thy  history.  Pause  and  be  still,  while  I  tell  it  to  these 
men. 

"  Brothers,  George  Jeffreys  '  began  in  the  sedition  line.'  '  There  was  no  act,  how- 
ever bad,  that  he  would  not  resort  to  to  get  on.'  '  He  was  of  a  bold  aspect,  and  cared 
not  for  the  countenance  of  any  man.'  '  He  became  the  avowed,  unblushing  slave  of 
the  court,  and  the  bitter  persecutor  and  unappeasable  enemy  of  the  principles  he  had 
before  supported.'  '  He  was  universally  insolent  and  overbearing.'  '  As  a  judge,  he 
did  not  consider  the  decencies  of  his  post,  nor  did  he  so  much  as  affect  to  be  impartial, 
as  became  a  judge.'  His  face  and  voice  were  always  unamiable.  '  All  tenderness  for 
the  feelings  of  others,  all  self-respect  were  obliterated  from  his  mind.'  He  had  '  a  de- 
light in  misery,  merely  as  misery,'  and  '  that  temper  which  tyrants  require  in  their 
worst  instruments.'  '  He  made  haste  to  sell  his  forehead  of  brass  and  his  tongue  of 
venom  to  the  court.'  Pie  had  '  more  impudence  than  ten  carted  street-walkers  ; '  and 
was  appropriately  set  to  a  work  '  which  could  be  trusted  to  no  man  who  reverenced 
law,  or  who  was  sensible  of  shame.'  He  was  a  '  Commissioner'  in  1685.  You  know 
of  the 'Bloody  assizes'  which  he  held,  and  how  he  sent  to  execution  three  hundred 
and  twenty  persons  in  a  single  circuit.  '  The  whole  country  was  strewed  with  the 
heads  and  limbs  of  his  victims.'  Yet  a  man  wrote  that  '  A  little  more  hemp  might 
have  been  usefully  employed.'  He  was  the  worst  of  the  English  judges.  '  There  was 
no  measure,  however  illegal,  to  the  execution  of  which  he  did  not  devotedly  and  reck- 
lessly abandon  himself.'  '  During  the  Stuart  reigns,  England  was  cursed  by  a  succes- 
sion of  rulhaus  in  ermine,  who,  for  the  sake  of  court  favor,  wrested  the  principles  of 
law,  the  precepts  of  religion,  and  the  duties  of  humanity ;  but  they  Avere  all  greatly 
outstripped  by  Jeffreys.'     Such  is  his  history. 

"  Come,  shade  of  a  judicial  butcher !  Two  hundred  years  thy  name  has  been  pil- 
loried in  face  of  the  world,  and  thy  memory  gibbeted  before  mankind.  Let  us  see 
how  thou  wilt  compare  with  those  who  kidnap  men  in  Boston !  Go  seek  companion- 
ship with  them !  Go  claim  thy  kindred,  if  such  they  be  !  Go  tell  them  that  the  mem- 
ory of  the  wicked  shall  rot,  —  that  there  is  a  God ;  an  Eternity;  ay!  and  a  Judgment 
too  !  where  the  slave  maj'  appeal  against  him  that  made  him  a  slave,  to  Illm  that  made 
him  a  man. 

"What!     Dost  thou  shudder  ?     Thou  turn  back  !     These  not  thy  kindred  !     Why 

17 


194  UNITED    STATES    VS.   THEODORE   PARKER. 

dost  tliou  turn  pale,  as  when  the  crowd  clutched  at  thy  life  in  London  Street?  It  is 
true,  George  Jeffreys,  and  these  are  not  thy  kin.  Forgive  me  that  I  should  send  thee 
on  such  an  errand,  or  bid  thee  seek  companionship  with  such  —  with  Boston  hunters 
of  the  slave!  Thou  wert  not  base  enough !  It  was  a  great  bribe  that  tempted  tliee  ! 
Arfain  I  say,  pardon  me  for  sending  thee  to  keep  company  with  such  men  !  Thou  only 
struckst  at  men  accused  of  crime;  not  at  men  accused  only  of  their  birth!  Thou 
wouldst  not  send  a  man  into  bondage  for  two  pounds !  I  will  not  rank  thee  with  men 
who,  in  Boston,  for  ten  dollars,  would  enslave  a  negro  now  !  Rest  still,  Herod !  Be 
quiet,  Nero !  Sleep,  St.  Dominic,  and  sleep,  O  Torquemada !  in  your  fiery  jail ! 
Sleep,  Jeffreys,  underneath  'the  altar  of  the  church'  which  seeks  with  Christian  char- 
ity to  hide  your  hated  bones." 

"  Well,  my  brethren,  these  are  only  the  beginning  of  sorrows.  There  will  be  other 
victims  yet ;  this  will  not  settle  the  question.  What  shall  we  do  ?  I  think  I  am  a  calm 
man  and  a  cool  man,  and  I  have  a  word  or  two  to  say  as  to  what  we  shall  do.  Never 
obey  the  law.  Keep  the  law  of  God.  Next  I  say,  resist  not  evil  with  evil ;  resist  not 
now  with  violence.  Why  do  I  say  this  ?  Will  you  tell  me  that  I  am  a  coward  ?  Per- 
haps I  am ;  at  least  I  am  not  afraid  to  be  called  one.  Why  do  I  say,  then,  do  not  now 
resist  with  violence  ?  Because  it  is  not  time  just  yet ;  it  would  not  succeed.  If  I  had 
the  eloquence  that  I  sometimes  dream  of,  which  goes  into  a  crowd  of  men,  and  gathers 
them  in  its  mighty  arm,  and  sways  them  as  the  pendent  boughs  of  yonder  elm  shall  be 
shaken  by  the  summer  breeze  next  June,  I  would  not  give  that  counsel.  I  would  call  on 
men,  and  lift  up  my  voice  like  a  trumpet  through  the  whole  land,  until  I  had  gathered 
millions  out  of  the  North  and  the  South,  and  they  should  crush  slavery  for  ever,  as  the 
ox  crushes  the  spider  underneath  his  feet.  But  such  eloquence  is  given  to  no  man. 
It  was  not  given  to  the  ancient  Greek  who  '  shook  the  arsenal  and  fulmined  over 
Greece.'  He  that  so  often  held  the  nobles  and  the  mob  of  Rome  within  his  hand,  had 
it  not.  He  that  spoke  as  never  man  spake,  and  who  has  since  gathered  two  hundred 
millions  to  his  name,  had  it  not.  No  man  has  it.  The  ablest  must  wait  for  time !  It 
is  idle  to  resist  here  and  now.  It  is  not  the  hour.  If  in  1765  they  had  attempted  to 
carry  out  the  Revolution  by  force,  they  would  have  failed.  Had  it  failed,  we  had  not 
been  here  to-day.  There  would  have  been  no  little  monument  at  Lexington  '  sacred 
to  liberty  and  the  rights  of  mankind,'  honoring  the  men  who  '  fell  in  the  cause  of  God 
and  their  country.'  No  little  monument  at  Concord ;  nor  that  tall  pile  of  eloquent 
stone  at  Bunker  Hill,  to  proclaim  that  '  Resistance  to  tyrants  is  obedience  to  God.' 
Success  is  due  to  the  discretion,  heroism,  calmness,  and  forbearance  of  our  fathers: 
let  us  wait  our  time.     It  will  come  —  perhaps  will  need  no  sacrifice  of  blood."  ^ 

Gentlemen,  I  think  Judge  Finch  could  construct  a  misdemeanor 
out  of  these  words  ;  you  will  jfind  in  them  nothing  but  the  plain 
speech  of  a  minister  of  the  Christian  religion. 

On  the  6th  of  July,  1851,  I  preached  "  Of  the  three  chief  Safe- 
guards of  Society,"  and  said  :  — 

"  Nowhere  in  the  world  is  there  a  people  so  orderly,  so  much  attached  to  law,  as  the 
people  of  these  Nortluirn  States.  Vmt  one  law  is  an  exception.  The  people  of  the 
North  hate  the  fugitive  slave  law,  as  they  have  never  hated  any  law  since  the  stamp 
act.  I  know  there  are  men  in  the  Northern  States  who  like  it,  —  who  would  have 
invented  slavery,  liad  it  not  existed  long  before.  But  the  mass  of  the  Northern  people 
hate  this  law,  because;  it  is  hostile  to  the  purpose  of  all  just  human  law,  hostile  to  the 

1  2  I'iirkcr's  Occasionul  Sermons,  p.  334-337,  343-31S,  S51,  352. 


SOME   MERCHANTS   AND   MINISTERS   FRIENDLY   TO   KIDNAPPING.     195 

purpose  of  society,  hostile  to  the  purpose  of  individual  life  ;  because  it  is  hostile  to  the 
law  of  God,  —  bids  the  wrong,  forbids  the  right.  AVe  disobey  that,  for  the  same  reason 
that  wc  keep  other  laws :  because  we  reverence  the  law  of  God.  Why  should  we 
keep  that  odious  law  -which  makes  us  hated  wherever  justice  is  loved  ?  Because  we 
must  sometimes  do  a  disagreeable  dccil  to  accomplish  an  agreeable  purpose  ?  The 
purpose  of  that  law  is  to  enable  three  hundred  thousand  slaveholders  to  retake  on  our 
soil  the  men  they  once  stole  on  other  soil !  Most  of  the  city  churches  of  the  North 
seem  to  think  that  is  a  good  thing.  Very  well ;  is  it  worth  while  for  fifteen  million 
freemen  to  transgress  the  plainest  of  natural  laws,  the  most  obvious  instincts  of  the 
human  heart,  and  the  plainest  duties  of  Christianity,  for  that  purpose  ?  The  price  to 
pay  is  the  religious  integrity  of  fifteen  million  men  ;  the  thing  to  buy  is  a  privilege  for 
three  hundred  thousand  slaveholders  to  use  the  North  as  a  hunting  field  Avhereou  to 
kidnap  men  at  our  cost.     Judge  you  of  that  bargain." 

"  I  adjure  you  to  reverence  a  government  that  is  right,  statutes  that  are  right,  of- 
ficers that  are  right ;  but  to  disobey  every  thing  that  is  wrong.  I  introat  you  by  your 
love  for  your  country,  by  the  memorj^  of  your  fathers,  by  your  reverence  for  Jesus 
Christ,  yea,  by  the  deep  and  holy  love  of  God  which  Jesus  taught,  and  you  now  feel."^ 

You  will  say  all  this  is  but  indispensable  duty ;  but  the  judge  who 
hanged  a  man  for  treason  because  he  promised  to  make  his  son  "  heir 
to  the  Crown" — meaning  the  "  Crown  Tavern"  that  he  lived  in  — 
would  doubtless  find  treason  in  my  words  also. 

On  the  12th  of  April,  1852,  I  delivered  an  address  to  commemorate 
the  first  anniversary  of  the  Kidnapping  of  Thomas  Sims,  and  said:  — 

"  But  when  the  rulers  have  inverted  their  function,  and  enacted  wickedness  into 
a  law  which  treads  down  the  unalienable  rights  of  man  to  such  a  degree  as  this,  then 
I  know  no  ruler  but  God,  no  law  but  natural  Justice.  I  tear  the  hateful  statute  of  kid- 
nappers to  shivers ;  I  trample  it  underneath  my  feet.  I  do  it  in  the  name  of  all  law  ; 
in  the  name  of  Justice  and  of  Man ;  in  the  name  of  the  dear  God." 

"You  remember  the  decision  of  the  Circuit  judge,  —  himself  soon  to  be  summoned 
by  death  before  the  Judge  who  is  no  respecter  of  persons,  —  not  allowing  the  destined 
victim  his  last  hope,  '  the  great  writ  of  right.'  The  decision  left  him  entirely  at  the 
mercy  of  the  other  kidnappers.  The  Court-room  was  crowded  with  '  respectable 
people,'  '  gentlemen  of  property  and  standing : '  they  received  the  decision  with  '  ap- 
plause and  the  clapping  of  hands.'  Seize  a  lamb  out  of  a  flock,  a  wolf  from  a  pack  of 
■wolves,  the  lambs  bleat  with  sympathy,  the  wolves  howl  with  fellowship  and  fear ;  but 
when  a  competitor  for  the  Presidency  sends  back  to  eternal  bondage  a  poor,  friendless 
negro,  asking  only  his  limbs,  wealthy  gentlemen  of  Boston  applaud  the  outrage. 

'  0  judgment!  thou  art  fled  to  brutish  beasts. 
And  men  have  lost  their  reason ! '  " 

"  When  the  Fugitive  Slave  Bill  passed,  the  six  New  England  States  lay  fast  asleep  : 
Massachusetts  slept  soundly,  her  head  pillowed  on  her  unsold  bales  of  cotton  and  of 
woollen  goods,  dreaming  of  '  orders  from  the  South.'  Justice  came  to  waken  her,  and 
■whisper  of  the  j)cril  of  nine  thousand  citizens ;  and  she  started  in  her  sleep,  and,  being 
frighted,  swore  a  prayer  or  two,  then  slept  again.  But  Boston  woke,  —  sleeping,  in 
her  shop,  with  ears  open,  and  her  eye  on  the  market,  her  hand  on  her  purse,  dreaming 

1  2  Parker's  Occasional  Sermons,  p.  392-394. 


196  UNITED    STATES    VS.    TnEODORE    PARKER. 

of  goods  for  sale,  —  Boston  woke  broadly  up,  and  fired  a  hundred  guns  for  joy.  O 
Boston,  Boston !  if  thou  couldst  have  known,  in  tliat  thine  hour,  the  things  which  be- 
lono-  unto  thy  peace  !  But  no:  they  were  hidden  from  her  eyes.  She  had  prayed  to 
her  f^od,  to  Money ;  he  granted  her  the  request,  but  sent  leanness  into  her  soul." 

"  Yet  one  charo-e  has  been  made  against  the  Government,  which  seems  to  me  a  little 
harsh  and  unjust.  It  has  been  said  the  administration  preferred  low  and  contemptible 
men  as  their  tools;  judges  who  blink  at  law,  advocates  of  infamy,  and  men  cast  off 
from  society  for  perjury,  for  nameless  crimes,  and  sins  not  mentionable  in  English 
speech ;  creatures  '  not  so  good  as  the  dogs  that  licked  Lazarus's  sores  ;  but,  like  flies, 
still  buzzing  upon  any  thing  that  is  raw.*  There  is  a  semblance  of  justice  in  the 
charge :  witness  Philadelphia,  Buffalo,  Boston  ;  witness  New  York.  It  is  true,  for  kid- 
nappers the  Government  did  take  men  that  looked  '  like  a  bull-dog  just  come  to  man's 
estate ; '  men  whose  face  declared  them,  '  If  not  the  devil,  at  least  his  twin-brother.' 
There  are  kennels  of  the  coui'ts  wherein  there  settles  down  all  that  the  law  breeds 
most  foul,  loathsome,  and  hideous  and  abhorrent  to  the  eye  6f  day  ;  there  this  con- 
taminating puddle  gathers  its  noisome  ooze,  slowly,  stealthily,  continually,  agglomer- 
ating its  fetid  mass  by  spontaneous  cohesion,  and  sinking  by  the  irresistible  gravity  of 
rottenness  into  that  abhorred  deep,  the  lowest,  ghastliest  pit  In  all  the  subterranean 
vaults  of  human  sin.  It  is  true  the  Government  has  skimmed  the  top  and  dredged  the 
bottom  of  these  kennels  of  the  courts,  taking  for  its  purpose  the  scum  and  sediment 
thereof,  the  Squeers,  the  Fagins,  and  the  Quilps  of  the  law,  the  monsters  of  the  court. 
Blame  not  the  Government ;  it  took  the  best  it  could  get.  It  was  necessity,  not  will, 
which  made  the  selection.  Such  is  the  stuff  that  kidnappers  must  be  made  of.  If  you 
■wish  to  kill  a  man,  it  is  not  bread  you  buy  :  it  is  poison.  Some  of  the  instruments  of 
Government  Avere  such  as  one  does  not  often  look  upon.  But,  of  old  time,  an  inquisi- 
tor was  always  '  a  horrid-looking  fellow,  as  beseemed  his  trade.'  It  Is  only  justice  that 
a  kidnapper  should  bear  '  his  great  commission  in  his  look.' " 

"  I  pity  the  kidnappers,  the  poor  tools  of  men  almost  as  base.  I  would  not  hurt  a 
hair  of  their  heads ;  but  I  would  take  the  thunder  of  the  moral  world,  and  dash  its 
bolted  lightning  on  this  crime  of  stealing  men,  till  the  name  of  kidnapping  should  be 
like  Sodom  and  Gomorrah.  It  is  piracy  to  steal  a  man  in  Guinea ;  what  is  it  to  do 
this  in  Boston  ? 

"  I  pity  the  merchants  who,  for  their  trade,  were  glad  to  steal  their  countrymen ;  I 
wish  them  only  good.  Debate  in  yonder  hall  has  shown  how  little  of  humanity  there 
is  in  the  trade  of  Boston.  She  looks  on  all  the  horrors  which  intemperance  has 
wrought,  and  daily  deals  in  every  street ;  she  scrutinizes  the  jails,  —  they  are  filled  by 
rum ;  she  looks  into  the  alms-houses,  crowded  full  by  rum ;  she  walks  her  streets,  and 
sees  the  perishing  classes  fiiU,  mowed  down  by  rum  ;  she  enters  the  parlors  of  wealthy 
men,  looks  into  the  bridal  chamber,  and  meets  death :  the  ghosts  of  the  slain  are  there, 
—  men  slain  by  rum.  She  knows  it  all,  yet  says,  '  There  is  an  interest  at  stake!'  — 
the  interest  of  rum;  let  man  give  way  !  Boston  does  this  to-day.  Last  year  she  stole 
a  man  ;  her  merchants  stole  a  man  !  The  sacrifice  of  man  to  money,  when  shall  it 
have  an  end  ?  I  pity  those  merchants  who  honor  money  more  than  man.  Their  gold 
is  cankered,  and  their  soul  Is  brass,  —  Is  rusted  brass.  They  must  come  up  before  the 
posterity  which  they  affect  to  scorn.  What  voice  can  plead  for  them  before  their  own 
children  V  The  eye  that  mocketh  at  the  justice  of  its  son,  and  scorneth  to  obey  the 
mercy  of  its  daughter,  the  ravens  of  posterity  shall  pick  it  out,  and  the  young  eagles 
cat  it  up  ! 

"  I'iUt  there  is  y(!t  anollicr  trl])iinal:  '  Aftcsr  the  death  the  judgment ! '  AVhen  he 
raakflh  Iii(|uIsitIon  for  the  blood  of  the  Innocent,  what  shall  the  stealers  of  men  rei)ly  ? 
Boston  merchants,  where  Is  your  brother,  Thomas  Sims?     Let  Cain  reply  to  Christ."' 

1  1  I'arkcr'H  Additional  Spceclics,  p.  60,  70,  88,  80,  92,  93,  100,  101. 


WEBSTER   AND   THE    STEALERS    OF   MEN.  197 

The  Suiulay  after  Mr.  Webster's  death,  Oct.  31,  1852,  I  spoke  of 
that  powerful  man  ;  listen  to  this :  — 

"Mr.  Webster  stamped  liis  foot,  and  broke  throufrli  into  the  great  hollow  of  practical 
atheism,  which  iindcrgulfs  tlic  State  and  Clmrch.  Then  what  a  caving  in  was  there  ! 
The  firm-set  base  of  iiorthei'n  cities  quaked  and  yawned  with  gaping  rents.  '  Penn's 
sandy  foundation  '  shook  again,  and  black  men  fled  from  the  city  of  brotherly  love,  as 
doves,  with  plaintive  cry,  flee  from  a  farmer's  barn  when  summer  lightning  stabs  the 
roof.  There  was  a  twist  in  Faneuil  Hall,  and  the  doors  could  not  open  wide  enough 
for  Liberty  to  regain  her  ancient  Cradle;  only  soldiers,  greedy  to  steal  a  man,  them- 
selves stole  out  and  in.  Ecclesiastic  quicksand  ran  down  the  hole  amain.  Metropoli- 
tan churches  toppled,  and  pitched,  and  canted,  and  cracked,  their  bowing  walls  all  out 
of  plumb.  Colleges,  broken  from  the  chain  which  held  them  in  the  stream  of  time, 
rushed  towards  the  abysmal  rent.  Harvard  led  the  way,  '  C/u-isto  et  Ecdeske^  in  her 
hand.  Down  plunged  Andover,  '  Conscience  and  the  Constitution '  clutched  in  its 
ancient,  foiling  arm.  New  Haven  began  to  cave  in.  Doctors  of  Divinity,  orthodox, 
heterodox,  with  only  a  doxy  of  doubt,  'no  settled  opinion,'  had  great  alacrity  in  sink- 
ing, and  went  down  quick,  as  live  as  ever,  into  the  pit  of  Korah,  Dathan,  and  Abiram, 
the  bottomless  pit  of  lower  law,  —  one  with  his  mother,  cloaked  by  a  surplice,  hid 
beneath  his  sinister  arm,  and  an  acknowledged  brother  grasped  by  his  remaining  limb. 
Fossils  of  theology,  dead  as  Ezekiel's  bones,  took  to  their  feet  again,  and  stood  up  for 
most  arrant  wrong.  '  There  is  no  higher  law  of  God,'  quoth  they,  as  they  went  down; 
'  no  golden  rule,  only  the  statutes  of  men.'  A  man  with  mythologic  ear  might  fancy 
that  he  heai'd  a  snickering  laugh  run  round  the  world  below,  snorting,  whinnying,  and 
neighing,  as  it  echoed  from  the  infernal  spot  pressed  by  the  fallen  monsters  of  ill-fame, 
who,  thousands  of  years  ago,  on  the  same  errand,  had  plunged  down  the  seltsame  way. 
What  tidings  the  echo  bore,  Dante  nor  Milton  could  not  tell.  Let  us  leave  that  to 
darkness,  and  to  silence,  and  to  death. 

"  But  spite  of  all  this,  in  every  city,  in  every  town,  in  every  college,  and  in  each  cap- 
sizing church,  there  were  found  Faithful  Men,  who  feared  not  the  monster,  heeded  not 
the  stamping  ;  —  nay,  some  doctors  of  divinity  were  found  living.  In  all  their  houses 
there  was  light,  and  the  destroying  angel  shook  them  not.  The  word  of  the  Lord 
came  in  open  vision  to  their  eye  ;  they  had  their  lamps  trimmed  and  burning,  their 
loins  girt ;  they  stood  road-ready.  Liberty  and  Religion  turned  in  thither,  and  the 
slave  found  bread  and  wings.  '  When  my  father  and  my  mother  forsake  me,  then  the 
Lord  will  hold  me  up  ! ' 

"After  the  7th  of  March,  Mr.  Webster  became  the  ally  of  the  worst  of  men,  the  fore- 
front of  kidnapping.  The  orator  of  Plymouth  Rock  was  the  advocate  of  slavery  ;  the 
hero  of  Bunker  Hill  put  chains  round  Boston  Court  House;  the  applauder  of  Adams 
and  Jefferson  was  a  tool  of  the  slaveholder,  and  a  keeper  of  slavery's  dogs,  the  asso- 
ciate of  the  kidnapper,  and  the  mocker  of  men  who  loved  the  right.  Two  years  he 
lived  with  that  rabble  rout  for  company,  his  name  the  boast  of  every  vilest  thing. 

'  Oh,  bow  unlike  the  phice  from  whence  he  fell! '  " 

"  Do  men  mourn  for  him  V  See  how  they  mourn  !  The  streets  are  hung  with 
black.  The  newspapers  are  sad  colored.  The  shops  are  put  in  mourning.  The 
Mayor  and  Aldermen  wear  crape.  Wherever  his  death  is  made  known,  the  public 
business  stops,  and  flags  drop  half-mast  down.  The  courts  adjourn.  The  courts  of 
Massachusetts ^- at  Boston,  at  Dedliam,  at  Lowell,  all  adjourn;  the  courts  of  New 
ILimpshire,  of  Maine,  of  New  York  ;  even  at  Baltimore  and  Washington,  the  courts 
adjourn ;  for  the  great  lawyer  is  dead,  and  Justice  must  wait  another  day.     Only  the 

17* 


198  UNITED    STATES  VS.   THEODORE   PARKER. 

United  States  Court,  in  Boston,  trying  a  man  for  helping  Shadrach  out  of  the  furnace 
of  the  kidnappers,  —  the  court  which  executes  the  Fugitive  Shive  Bill,  —  that  does  not 
adjourn  ;  that  keeps  on ;  its  worm  dies  not,  and  the  fire  of  its  persecution  is  not 
quenched,  when  death  puts  out  the  lamp  of  life  !  Injustice  Is  hungry  for  its  prey,  and 
must  not  be  balked.  It  was  very  proper !  Symbolical  court  of  the  Fugitive  Slave 
Bill  —  it  does  not  respect  life,  why  should  it  death  ?  and,  scorning  liberty,  why  should 
it  heed  decorum  ?  "^ 

On  the  12th  of  February,  1854,  I  preached  "  Some  Thoughts  on 
the  new  Assault  upon  Freedom  in  America." 

"  Who  put  Slavery  in  the  Constitution  ;  made  it  Federal  ?  who  put  it  in  the  new 
States?  who  got  new  soil  to  plant  it  in?  who  carried  it  across  the  Mississippi  —  into 
Louisiana,  Florida,  Texas,  Utah,  New  Mexico  ?  who  established  it  in  the  Capital  of 
the  United  States?  who  adopted  Slavery  and  volunteered  to  catch  a  runaway,  in  1793, 
and  repeated  the  act  in  1850,  —  in  defiance  of  all  law,  all  precedent,  all  right?  Why, 
it  was  the  North.  '  Spain  armed  herself  with  bloodhounds,'  said  Mr.  Pitt,  '  to  extir- 
pate the  wretched  natives  of  America.'  In  1850,  the  Christian  Democracy  set  worse 
bloodhounds  afoot  to  pursue  Ellen  Craft;  offered  them  five  dollars  for  the  run,  if  they 
did  not  take  her ;  ten  if  they  did !  The  price  of  blood  was  Northern  money  ;  the 
bloodhounds  —  they  were  Kidnappers  born  at  the  North,  bred  there,  kennelled  in  her 
church,  fed  on  her  sacraments,  blessed  by  her  priests!  In  1778,  Mr.  Pitt  had  a 
yet  harsher  name  for  the  beasts  wherewith  despotic  Spain  hunted  the  red  man  in  the 
woods  —  he  called  them  '■Hell  Hounds.'  But  they  only  hunted  'savages,  heathens, 
men  born  in  barbarous  lands.'  W^hat  would  he  say  of  the  pack  which  in  1851  hunted 
American  Christians,  in  the  '  Athens  of  America,'  and  stole  a  man  on  the  grave  of 
Hancock  and  Adams  —  all  Boston  looking  on,  and  its  priests  blessing  the  deed!' 

"  See  what  encourages  the  South  to  make  new  encroachments.  She  has  been  emi- 
nently successful  in  her  former  demands,  especially  with  the  last.  The  authors  of  the 
fugitive  slave  bill  did  not  think  that  enormity  could  be  got  through  Congress :  it  was 
too  atrocious  in  itself,  too  insulting  to  the  North.  But  Northern  men  sprang  forward 
to  defend  it  —  powerful  politicians  supported  it  to  the  fullest  extent.  The  Avorse  it 
was,  the  better  they  liked  it.  Northern  merchants  were  in  flivor  of  it  —  it  'would 
conciliate  the  South.'  Northern  ministers  in  all  the  churches  of  commerce  baptized  it, 
defended  it  out  of  the  Old  Testament,  or  the  New  Testament.  The  Senator  of  Bos- 
ton gave  it  his  mighty  aid,  —  he  went  through  the  land  a  huckster  of  Slavery,  ped- 
dling Atheism :  the  Representative  of  Boston  gave  it  his  vote.  Their  constituents  sus- 
tained both  !  All  the  great  cities  of  the  North  executed  the  bill.  The  leading  Jour- 
nals of  Boston  advised  the  merchants  to  withhold  all  commercial  intercourse  from 
Towns  which  opposed  Kidnapping.  There  was  a  '  Unioh  Meeting '  at  Faneuil  Hall. 
You  remember  the  men  on  the  platform :  the  speeches  are  not  forgotten.  The  doc- 
trine tliat  there  is  a  Law  of  God  above  the  passions  of  the  multitude  and  the  ambition 
of  their  leaders,  was  treated  with  scorn  and  hooting  :  a  loud  guffaw  of  vulgar  ribaldry 
went  up  against  the  Justice  of  the  Infinite  God  !  All  the  great  cities  did  the  same. 
Atlu'.ism  was  inaugurated  as  the  first  principle  of  Republican  government ;  in  politics, 
religion  makes  men  mad!  Mr.  Clay  declared  that  'no  Northern  gentleman  will  ever 
help  return  a  fugitive  Slave !'  What  took  i)Iace  at  Pliiiadelphia?  New  York  ?  Cin- 
cinnati?—  nay,  at  IJoston  ?  The  Northern  cliurclies  of  connnerce  thought  Slavery 
was  a  blessing,  KidMap|)iiig  a  'grace.'  The  Denioci-ats  and  Whigs  vie  with  eacli  other 
in  devotion  to  tlic  fugitive  slave  bill.     The  'Compromises'  are  the  golden  rule.     The 

1  1  I'lirluT's  Adclitioniil  Speeclies,  235-37,  24G  -  47. 


sriniT  OF  1775  and  spiuit  of  1851.  199 

North  conquered  her  prejudices.     The  Soutli  sees  tliis,  and  makes  another  demand. 
Why  not '?     I  am  glad  of  it.     She  serves  us  riglit." 

"In  1775,  what  if  it  had  been  told  the  men  all  red  with  battle  at  Lexington  and 
Bunker  Hill,  —  'your  sons  will  gird  the  Court  House  with  chains  to  kidnap  a  man  ; 
Boston  will  vote  for  a  Bill  which  puts  the  liberty  of  any  man  in  the  hands  of  a  Com- 
missioner, to  be  paid  twice  as  much  fur  making  a  Slave  as  for  declaring  a  freeman ;  and 
Boston  will  call  out  its  soldiers  to  hunt  a  man  through  its  streets  !'  What  if  on  the 
19th  of  April,  1775,  when  Samuel  Adams  said,  '  Oh!  what  a  glorious  morning  is  this!' 
as  he  heard  the  tidings  of  war  in  the  little  village  where  he  passed  the  night,  —  what 
if  it  had  been  told  him,  —  'On  the  19th  of  April,  seventy-six  years  from  this  day, 
will  your  City  of  Boston  land  a  poor  youth  at  Savannah,  having  violated  her  own  laws, 
and  stained  her  ^Magistrates'  hands,  in  order  to  put  an  innocent  man  in  a  Slave-master's 
jail  ?  '  "What  if  it  liad  l)een  told  him  that  Ellen  Craft  must  lly  out  of  Democratic 
Boston,  to  ^Monarchic,  Theocratic,  Aristocratic  England,  to  find  shelter-  for  her  limbs, 
her  connubial  innocence,  and  the  virtue  of  her  woman's  heart  V  I  think  Samuel  would 
have  cursed  the  day  in  which  it  was  said  a  man-child  was  born,  and  America  was  free  I 
What  if  it  had  been  told  Mayhew  and  Belknap,  that  in  the  pulpits  of  Boston,  to  de- 
fend kidnapping  should  be  counted  to  a  man  as  righteousness?  They  could  not  have 
believed  it.  They  did  not  know  what  baseness  could  suck  the  Korthern  breast,  and 
still  be  base."  ^ 

You  will  think  all  this  is  good  morality  ;  but  Mr.  Curtis  in  1836, 
maintained  that  kidnapping  in  Massachusetts,  would  "promote  har- 
mony and  good-will  where  it  is  extremely  desirable  to  promote  it, 
encourage  frequent  intercourse,  and  soften  prejudice  by  increasing  ac- 
quaintance, and  tend  to  peace  and  good-will."  Nay,  that  it  may  be 
"  perfectly  consistent  with  our  policy  .  .  .  to  interfere  activety  to  ena- 
ble the  citizens  of  those  States  [the  slave  States]  to  enjoy  those  insti- 
tutions at  home"  "  Slavery  is  not  immoral ;  "  "  By  the  law  of  this 
Commonwealth  slavery  is  not  immoral."  ^ 

After  Commissioner  Loring  had  kidnapped  Anthony  Burns,  I  at- 
tended the  meeting  at  Faneuil  Hall,  and  spoke.  Gentlemen,  I  did 
not  finish  the  speech  I  had  begun,  for  news  came  that  an  attack  was 
made  on  the  Court  House,  and  the  meeting  was  thrown  into  confu- 
sion. I  did  not  speak  in  a  corner,  but  in  the  old  Cradle  of  Liberty. 
Here  is  the  report  of  the  speech  which  was  made  by  a  phonographer, 
and  published  in  the  newspapers  of  the  time  —  I  have  no  other  notes 
of  it.  You  shall  see  if  there  be  a  misdemeanor  in  it.  Here  is  the 
speech :  — 

"  Fellow-subjects  of  Virginia  —  [Loud  cries  of  '  No,'  '  no,'  and 
'you  must  take  that  back!']  Felloav-citizexs  of  Boston,  then- — 
['  Yes,'  'yes,']  —  I  come  to  condole  with  you  at  this  second  disgrace 
which  is  heaped  on  the  city  made  illustrious  by  some  of  those  faces 
that  were  once  so  familiar  to  our  eyes.  [Alluding  to  the  portraits 
which  once  hung-  conspicuously  in  Faneuil  Hall,  but  which  had  been 

^  1  Parker's  Additional  Speeches,  p.  351,  352j  357-359,  3C8,  3C9. 
-  Med  Case,  p.  9,  11. 


200  UNITED    STATES    VS.    THEODORE    PARKER. 

removed  to  obscure  and  out-of-the-way  locations.]      Fellow-citizens 

—  A  deed  which  Virginia  commands  has  been  done  in  the  city  of 
John  Hancock  and  the  '  brace  of  Adamses.'  It  was  done  by  a  Bos- 
ton hand.  It  was  a  Boston  man  who  issued  the  warrant;  it  was  a 
a  Boston  Marshal  who  put  it  in  execution ;  they  are  Boston  men 
who  are  seeking  to  kidnap  a  citizen  of  Massachusetts,  and  send  him 
into  slavery  for  ever  and  ever.  It  is  our  fault  that  it  is  so.  Eight 
years  ago,  a  merchant  of  Boston  '  kidnapped  a  man  on  the  high  road 
between  Faneuil  Hall  and  Old  Quincy,'  at  12  o'clock,  —  at  the  noon 
of  day,  —  and  the  next  day,  mechanics  of  this  city  exhibited  the  half- 
eagles  they  had  received  for  their  share  of  the  spoils  in  enslaving  a 
brother  man.  You  called  a  meeting  in  this  hall.  It  was  as  crowded 
as  it  is  now.  I  stood  side  by  side  with  my  friend  and  former  neigh- 
bor, your  honorable  and  noble  Chairman  to-night  [George  R.  Russell, 
of  West  Roxbury],  [Loud  Cheers,]  while  this  man  who  had  fought  for 
liberty  in  Greece,  and  been  imprisoned  for  that  sacred  cause  in  the 
dungeons  of  Poland,  [Dr.  Samuel  G.  Howe,]  stood  here  and  intro- 
duced to  the  audience  that  '  old  man  eloquent,'  John  Quincy  Adams. 
[Loud  Cheers.] 

"  It  was  the  last  time  he  ever  stood  in  Faneuil  Hall.  He  came  to 
defend  the  unalienable  rights  of  a  friendless  negro  slave,  kidnapped 
in  Boston.  There  is  even  no  picture  of  John  Quincy  Adams  to- 
night. 

"  A  Suffolk  Grand-Jury  would  find  no  indictment  against  the  Bos- 
ton merchant  for  kidnapping  that  man.  ['  Shame,'  '  shame.']  If 
Boston  had  spoken  then,  we  should  not  have  been  here  to-night. 
We  should  have  had  no  fugitive  slave  bill.  When  that  bill  passed, 
we  fired  a  hundred  guns. 

"Don't  you  remember  the  Union  meeting  held  in  this  very  hall? 
A  man  stood  on  this  platform,  —  he  is  a  Judge  of  the  Supreme  Court 
now,  —  and  he  said —  When  a  certain  '  Reverend  gentleman'  is  in- 
dicted for  perjury,  I  should  like  to  ask  him  how  he  will  answer  the 
charge?  And  when  that  'Reverend  gentleman'  rose,  and  asked, 
'  Do  you  want  an  answer  to  your  question  ?  '  Faneuil  Hall  cried  out, 

—  '  No,'  '  no,'  — '  Throw  him  over! '  Had  Faneuil  tiall  spoken  then 
on  the  side  of  Truth  and  Freedom,  we  should  not  now  be  the  sub- 
jects of  Virginia. 

"  Yes,  we  arc  the  vassals  of  Virginia.  She  reaches  her  arm  over 
the  graves  of  our  mothers,  and  kidnaps  men  in  the  city  of  the 
Puritans;  over  the  graves  of  Samuel  Adams  aud  John  Hancock. 
[Cries  of  'Shame!']  'Shame!'  so  I  say  ;  but  who  is  to  blame? 
'  There  is  no  north,'  said  Mr.  Webster.  There  is  none.  The  South 
go(;s  eh-ar  u|)  lo  the  C/.inada  line.  No,  gentlemen,  there  is  no  Boston 
to-day.     There  icas  a  Boston  once.     Now,  there  is  a   North  sub- 


MR.  Parker's  speech  at  faneuil  hall.  201 

urb  to  the  city  of  Alexandria,  —  that  is  what  Boston  is.  [Laugh- 
ter.] And  you  and  I,  fellow-subjects  of  the  State  of  Virginia  — 
[Cries  of  '  no,'  '  no.'  '  Take  that  back  again.']  —  I  will  take  it  back 
when  you  show  me  the  fact  is  not  so.  —  Menr  and  brothers,  (brothers, 
at  any  rate,)  I  am  not  a  young  man ;  I  have  heard  hurrahs  and 
cheers  for  liberty  many  times ;  I  have  not  seen  a  great  many  deeds 
done  for  liberty.  I  ask  you,  are  we  to  have  deeds  as  well  as  words? 
['  Yes,'  '  yes,'  and  loud  cheers.] 

"  Now,  brethren,  you  are  brothers  at  any  rate,  whether  citizens  of 
Massachusetts  or  subjects  of  Virginia  —  I  am  a  minister — and, 
fellow -citizens  of  Boston,  there  are  two  great  laws  in  this  country ; 
one  of  them  is  the  Law  of  Slavery  ;  that  law  is  declared  to  be  a 
'finality.'  Once  the  Constitution  was  formed  '  to  establish  justice, 
promote  tranquillity,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  jDosterity.'  Noio,  the  Constitution  is  not  to  secure  liberty ;  it 
is  to  extend  slavery  into  Nebraska.  And  when  slavery  is  established 
there,  in  order  to  show  what  it  is,  there  comes  a  sherifl'  from  Alexan- 
dria, to  kidnap  a  man  in  the  city  of  Boston,  and  he  gets  a  Judge  of 
Probate,  in  the  county  of  Suflblk,  to  issue  a  writ,  and  another  Bos- 
ton man  to  execute  that  writ  I     [Cries  of  '  shame,'  '  shame.'] 

"  Slavery  tramples  on  the  Constitution ;  it  treads  down  State 
Rights.  Where  are  the  Rights  of  Massachusetts  ?  A  fugitive  slave 
bill  Commissioner  has  got  them  all  in  his  pocket.  Where  is  the  trial 
by  jury  ?  Watson  Freeman  has  it  under  his  Marshal's  staff.  Where 
is  the  great  writ  of  personal  replevin,  which  our  fathers  wrested,  sev- 
eral hundred  years  ago,  from  the  tyrants  who  once  lorded  it  over 
Great  Britain?  Judge  Sprague  trod  it  under  his  feet!  Where  is  the 
sacred  right  of  habeas  corpus  ?  Deputy  Marshal  Riley  can  crush  it  in 
his  hands,  and  Boston  does  not  say  any  thing  against  it.  W^here  are 
the  laws  of  IMassachusetts  forbidding  State  edifices  to  be  used  as 
prisons  for  the  incarceration  of  fugitives  ?  They,  too,  are  trampled 
underfoot     '  Slavery  is  a  finality.' 

"  These  men  come  from  Virginia,  to  kidnap  a  man  here.  Once, 
this  was  Boston  ;  now,  it  is  a  Northern  suburb  of  Alexandria.  At 
first,  when  they  carried  a  fugitive  slave  from  Boston,  they  thought  it 
was  a  difficult  thing  to  do  it.  They  had  to  get  a  Mayor  to  help 
them;  they  had  to  put  chains  round  the  Court  House;  they  had  to 
call  out  the  '  Sims  Brigade  ' ;  it  took  nine  days  to  do  it.  Now,  they 
are  so  confident  that  we  are  subjects  of  Virginia,  that  they  do  not 
even  put  chains  round  the  Court  House  ;  the  police  have  nothing  to 
do  with  it.  I  was  told  to-day  that  one  of  the  ofiicers  of  the  city 
said  to  twenty-eight  police-men,  '  If  any  man  in  the  employment  of 
the  city  meddles  in  this  business,  he  will  be  discharged  from  service, 
without  a  hearing.'     [Great  applause,]      Well,  gentlemen,  how  do 


202  UNITED    STATES    VS.    THEODORE    PARKER. 

you  think  they  received  that  declaration  ?  They  shouted,  and  hur- 
rahed, and  gave  three  cheers.  [Renewed  applause.]  My  friend  here 
would  not  have  had  the  honor  of  presiding  over  you  to-night,  if  appli- 
cation had  been  made  a  little  sooner  to  the  Mayor.  Another  gentle- 
man told  me  that,  when  that  man  (the  Mayor)  was  asked  to  preside 
at  this  meeting,  he  said  that  he  regretted  that  all  his  time  to-night 
was  previously  engaged.  If  he  had  known  it  earlier,  he  said,  he 
might  have  been  able  to  make  arrangements  to  preside.  When  the 
man  was  arrested,  he  told  the  Marshal  he  regretted  it,  and  that  his 
sympathies  were  wholly  with  the  slave.  [Loud  applause.]  Fellow- 
citizens,  remember  that  word.  Hold  your  Mayor  to  it,  and  let  it  be 
seen  that  he  has  got  a  background  and  a  foreground,  which  will 
authorize  him  to  repeat  that  word  in  public,  and  act  it  out  in  Faneuil 
Hall.  I  say,  so  confident  are  the  slave  agents  now,  that  they  can 
carry  off  their  slave  in  the  daytime,  that  they  do  not  put  chains 
round  the  Court  House ;  they  have  got  no  soldiers  billeted  in  Fan- 
euil Hall,  as  in  1851.  They  think  they  can  carry  this  man  off  to- 
morrow morning  in  a  cab.  [Voices  — '  They  can't  do  it.'  '  Let's 
see  them  try.'] 

"  I  say,  there  are  two  great  laws  in  this  country.  One  is  the  slave 
law.  That  is  the  law  of  the  President  of  the  United  States ;  it  is 
the  law  of  the  Commissioner ;  it  is  the  law  of  every  Marshal,  and  of 
every  meanest  rufHan  whom  the  Marshal  hires  to  execute  his  behests. 
"There  is  another  law,  which  my  friend,  Mr.  Phillips,  has  described 
in  language  such  as  I  cannot  equal,  and  therefore  shall  not  try  ;  I 
only  state  it  in  its  plainest  terms.  It  is  the  Law  of  the  People  when 
they  are  sure  they  are  right  and  determined  to  go  ahead.  [Cheers 
and  much  confusion.] 

.  "  Now,  gentlemen,  there  was  a  Boston  once,  and  you  and  I  had 
fathers  —  brave  fathers;  and  mothers  who  stirred  up  those  fathers  to 
manly  deeds.  Well,  gentlemen,  once  it  came  to  pass  that  the  British 
Parliament  enacted  a  '  law '  —  they  called  it  law  —  issuing  stamps 
here.  What  did  your  fathers  do  on  that  occasion  ?  They  said,  in 
the  language  of  Algernon  Sydney,  quoted  in  your  resolutions,  'that 
which  is  not  just  is  not  law,  and  that  which  is  not  law  ought  not  to 
be  obeyed.'  —  [Cheers.]  They  did  not  obey  the  stamp  act.  They 
did  not  call  it  law,  and  the  man  that  did  call  it  a  law,  here,  eighty 
years  ago,  would  have  had  a  very  warm  coat  of  tar  and  feathers  on 
him.  They  called  it  an  '  act,'  and  they  took  the  Commissioner  who 
was  here  to  execute  it,  took  him  solemnly,  manfully,  —  tlicij  did  nH 
hurl  a  hair  of  his  head;  they  were  non-resistants,  of  a  very  potent 
sort,  [Cheers,]  —  and  made  him  take  a  solemn  oath  that  he  would  not 
issue  a  single  stamp.     He  was  brother-in-law  of  the  Governor  of  the 

State,  the  servant  of  a  royal  master, '  exceedingly  respectable,'  of  great 


MR.   PARKEll's   SPEECH   AT   FANEUIL   HALL.  203 

wealth,  and  once  very  popular;  but  they  took  him,  and  made  hiin 
swear  not  to  execute  his  commission  ;  and  he  kept  his  oath,  and  the 
stamp  act  went  to  its  own  place,  and  you  know  what  that  was. 
[Cheers.]  That  was  an  instance  of  the  people  going  behind  a 
wicked  law  to  enact  Absolute  Justice  into  their  statute,  and  making  it 
Common  Law.     You  know  what  they  did  with  the  tea. 

"  Well,  gentlemen,  in  the  South  there  is  a  public  opinion,  it  is  a 
very  wicked  public  opinion,  which  is  stronger  than  law.  When  a 
colored  seaman  goes  to  Charleston  from  Boston,  he  is  clapped  in- 
stantly into  jail,  and  kept  there  until  the  vessel  is  ready  to  sail,  and  the 
Boston  merchant  or  master  must  pay  the  bill,  and  the  Boston  black 
man  must  feel  the  smart.  That  is  a  wicked  example,  set  by  the 
State  of  South  Carolina.  When  Mr.  Hoar,  one  of  our  most  honored 
and  respected  fellow-citizens,  was  sent  to  Charleston  to  test  the 
legality  of  this  iniquitous  law,  the  citizens  of  Charleston  ordered  him 
oft'  the  premises,  and  he  was  glad  to  escape  to  save  himself  from  fur- 
ther outrage.  There  was  no  violence,  no  guns  fired.  That  was  an 
instance  of  the  strength  of  public  opinion  —  of  a  most  unjust  and 
iniquitous  public  opinion. 

"  Well,  gentlemen,  I  say  there  is  one  law —  slave  lavv^ ;  it  is  every- 
where. There  is  another  law,  which  also  is  a  finality  ;  and  that  law, 
it  is  in  your  hands  and  your  arms,  and  you  can  put  it  in  execution, 
just  when  you  see  fit. 

"  Gentlemen,  I  am  a  clergyman  and  a  man  of  peace ;  I  love  peace. 
But  there  is  a  means,  and  there  is  an  end ;  Liberty  is  the  end,  and 
sometimes  peace  is  not  the  means  towards  it.  [Applause.]  Now,  I 
want  to  ask  you  what  you  are  going  to  do.  [A  voice  —  'shoot, 
shoot.']  There  are  ways  of  managing  this  matter  without  shooting 
anybody.  Be  sure  that  these  men  who  have  kidnapped  a  man  in 
Boston,  are  cowards,  every  mother's  son  of  them ;  and  if  we  stand 
up  there  resolutely,  and  declare  that  this  man  shall  not  go  out  of  the 
city  of  Boston,  ivithotU  shooting-  a  g-iin — [cries  of  'that's  it,'  and 
great  applause,]  —  then  he  won't  go  back.  Now,  I  am  going  to  pro- 
pose that  when  you  adjourn,  it  be  to  meet  at  Court  Square,  to-mor- 
row morning'  at  nine  o\'lock.  As  many  as  are  in  favor  of  that  motion 
will  raise  their  hands.  [A  large  number  of  hands  were  raised,  but 
many  voices  cried  out,  'Let's  go  to-night,'  'let's  pay  a  visit  to  the 
slave-catchers  at  the  Revere  House,'  etc.  '  Put  that  question.']  Do 
you  propose  to  go  to  the  Revere  House  to-night,  then  show  your 
hands.  (Some  hands  were  held  up.)  It  is  not  a  vote.  We  shall 
meet  at  Court  Square,  at  nine  o^clock  to-morroiu  morning.'' 

On  the  following  Sunday,  May  28,  in  place  of  the  usual  Scripture 


204  UNITED    STATES   VS.   THEODORE   PARKER. 

passages,  I  extemporized  the  following  "  Lesson  for  the  Day,''  which 
on  Monday  appeared  in  the  newspapers:  — 

"  Since  last  we  came  together,  there  has  been  a  man  stolen  in  the 
city  of  our  fathers.  It  is  not  the  first ;  it  may  not  be  the  last.  He  is 
now  in  the  great  slave-pen  in  the  city  of  Boston.  He  is  there  against 
the  law  of  the  Commonwealth,  which,  if  I  am  rightly  informed,  in 
such  cases  prohibits  the  use  of  State  edifices  as  United  States  jails." 

"  A  man  has  been  killed  by  violence.  Some  say  he  was  killed  by 
his  own  coadjutors:  I  can  easily  believe  it;  there  is  evidence  enough 
that  they  were  greatly  frightened.  They  were  not  United  States  sol- 
diers, but  volunteers  from  the  streets  of  Boston,  who,  for  their  pay, 
went  into  the  Court  House  to  assist  in  kidnapping  a  brother  man. 
They  were  so  cowardly  that  they  could  not  use  the  simple  cutlasses 
they  had  in  their  hands,  but  smote  right  and  left,  like  ignorant  and 
frightened  ruffians  as  they  are.  They  may  have  slain  their  brother 
or  not  —  I  cannot  tell." 

"  Why  is  Boston  in  this  confusion  to-day  ?  The  fugitive  slave 
bill  Commissioner  has  just  now  been  sowing  the  wind,  that  we  may 
reap  the  whirlwind.  The  old  fugitive  slave  bill  Commissioner 
stands  back ;  he  has  gone  to  look  after  his  '  personal  popularity.' 
But  when  Commissioner  Curtis  does  not  dare  appear  in  this  matter, 
another  man  comes  forward,  and  for  the  first  time  seeks  to  kidnap 
his  man  also  in  the  city  of  Boston." 

"  But  he  has  sown  the  wind,  and  we  are  reaping  the  whirlwind. 
All  this  confusion  is  his  work.  He  knew  he  was  stealing  a  Man 
born  with  the  same  unalienable  right  to  'life,  liberty,  and  the  pursuit 
of  happiness,'  as  himself.  He  knew  the  slave-holders  had  no  more 
right  to  Anthony  Burns  than  to  his  own  daughter.  He  knew  the  con- 
sequences of  stealing  a  man.  He  knew  that  there  are  men  in  Boston 
who  have  not  yet  conquered  their  prejudices  —  men  who  respect  the 
Higher  Law  of  God.  He  knew  there  would  be  a  meeting  at  Faneuil 
Hall,  gatherings  in  the  streets.    He  knew  there  would  be  violence." 

"  Edward  Greeley  Loring,  Judge  of  Probate  for  the  County  of  Suf- 
folk, in  the  State  of  Massachusetts,  fugitive  slave  bill  Commis- 
sioner of  the  United  States,  before  these  citizens  of  Boston,  on 
Ascension  Sunday,  assembled  to  worship  God,  I  charge  you  with  the 
death  of  that  man  who  was  killed  on  last  Friday  night.  He  was 
your  fellow-servant  in  kidnapping.  He  dies  at  your  hand.  You  fired 
the  shot  which  makes  his  wife  a  widow,  his  child  an  orphan.  I 
charge  you  with  the  peril  of  twelve  men,  arrested  for  murder,  and  on 
trial  for  their  lives.  1  charge  you  with  filling  the  Court  House  with 
one  hundred  and  eighty-four  hired  rufiians  of  the  United  States,  and 
alarming  not  only  this  city  for  her  liberties  that  are  in  peril,  but  stir- 


TEE   NEW   CRIME   AGAIXST   HUMANITY.  205 

ring  up  the  whole  Commonwealth  of  Massachusetts  with  indigna- 
tion, which  no  man  knows  how  to  stop  —  which  no  man  can  stop. 
You  have  done  it  all  I  "  ^ 

June  4th,  I  preached  "of  the  New  Crime  against  Humanity,"  and 
said :  — 

"  Wednesday,  the  24th  of  May,  the  city  was  all  calm  and  still. 
The  poor  black  man  was  at  work  with  one  of  his  own  nation,  earn- 
ing an  honest  livelihood.  A  Judge  of  Probate,  Boston  born  and  Bos- 
ton bred,  a  man  in  easy  circumstances,  a  Professor  in  Harvard  Col- 
lege, was  sitting  in  his  office,  and  with  a  single  spurt  of  his  pen  he 
dashes  off  the  liberty  of  a  man  —  a  citizen  of  Massachusetts.  He 
kidnaps  a  man  endowed  by  his  Creator  with  the  unalienable  right  to 
life,  liberty,  and  the  pursuit  of  happiness.  He  leaves  the  writ  with 
the  Marshal,  and  goes  home  to  his  family,  caresses  his  children,  and 
enjoys  his  cigar.  The  frivolous  smoke  curls  round  his  frivolous  head, 
and  at  length  he  lays  him  down  to  sleep,  and,  I  suppose,  such  dreams 
as  haunt  such  heads.  But  when  he  wakes  next  morn,  all  the  winds  of 
indignation,  wrath,  and  honest  scorn,  are  let  loose.  Before  night,  they 
are  blowing  all  over  this  con\mon  wealth  —  ay,  before  another  night  they 
have  gone  to  the  Mississippi,  and  wherever  the  lightning  messenger 
can  tell  the  tale.  So  have  I  read  in  an  old  mediaeval  legend  that  one 
summer  afternoon,  there  came  up  a  '  shape,  all  hot  from  Tartarus,' 
from  hell  below,  but  garmented  and  garbed  to  represent  a  civil-suited 
man,  masked  with  humanity.  He  walked  quiet  and  decorous  through 
Milan's  stately  streets,  and  scattered  from  his  hand  an  invisible  dust. 
It  touched  the  walls ;  it  lay  on  the  streets ;  it  ascended  to  the  cross  on 
the  minster's  utmost  top.  It  went  down  to  the  beggar's  den.  Peace- 
fully he  walked  through  the  streets,  vanished  and  went  home.  But 
the  next  morning,  the  pestilence  was  in  Milan,  and  ere  a  week  had 
sped  half  her  population  were  in  their  graves;  and  half  the  other  half, 
crying  that  hell  was  clutching  at  their  hearts,  lied  from  the  reeking 
City  of  the  Plague  !  " 

"  I  have  studied  the  records  of  crime  — it  is  a  part  of  my  ministry. 
I  do  not  find  that  any  College  Professor  has  ever  been  hanged  for 
murder  in  all  the  Anglo-Saxon  family  of  men,  till  Harvard  College 
had  that  solitary  shame.  Is  not  that  enough  ?  Now  she  is  the  first 
to  have  a  Professor  that  kidnaps  men.  '  The  Athens  of  America' 
furnished  both ! 

"  I  can  understand  how  a  man  commits  a  crime  of  passion,  or 
covetousness,  or  rage,  nay,  of  revenge,  or  of  ambition.  But  for  a  man 
in  Boston,  with  no  passion,  no  covetousness,  no  rage,  with  no  ambi- 
tion nor  revenge,  to  steal  a  poor  negro,  to  send  him  into  bondage, — 

'  2  Parker's  Additional,  74,  75,  81,  83. 

18 


206  UNITED    STATES   VS.   THEODORE  PARKER. 

I  cannot  comprehend  the  fact.  I  can  understand  the  consciousness 
of  a  lion,  not  a  kidnapper's  heart." 

"  But  there  is  another  court.  The  Empsons  and  the  Dudleys  have 
been  summoned  there  before :  Jeffreys  and  Scroggs,  the  Kanes,  and 
the  Curtises,  and  the  Lorings,  must  one  day  travel  the  same  unwel- 
come road.  Imagine  the  scene  after  man's  mythological  way.  '  Ed- 
ward, where  is  thy  brother,  Anthony?'  'I  know  not;  am  I  my 
brother's  keeper.  Lord?  '  '  Edward,  where  is  thy  brother,  Anthony? ' 
'  Oh,  Lord,  he  was  friendless,  and  so  I  smote  him ;  he  was  poor,  and 
I  starved  him  of  more  than  life.  He  owned  nothing  but  his  African 
body.     I  took  that  away  from  him,  and  gave  it  to  another  man  I ' 

"  Then  listen  to  the  voice  of  the  Crucified  — '  Did  I  not  tell  thee, 
when  on  earth,  "  Thou  shalt  love  the  Lord  thy  God  with  all  thy 
understanding  and  thy  heart?  "'  '  But  I  thought  thy  kingdom  was 
not  of  this  world.' 

"  '  Did  I  not  tell  thee  that  thou  shouldst  love  thy  neighbor  as  thy- 
self? "Where  is  Anthony,  thy  brother?  I  was  a  stranger,  and  you 
sought  my  life  ;  naked,  and  you  rent  away  my  skin;  in  prison,  and 
you  delivered  me  to  the  tormentors  —  fate  far  worse  than  death.  In- 
asmuch as  you  did  it  to  Anthony  Burns,  you  did  it  unto  me.' "  ^ 

Gentlemen,  I  suppose  the  honorable  Judge  had  the  last  three 
addresses  in  his  mind  while  concocting  his  charge  to  the  Grand-Jury 
which  refused  to  find  a  bill.  I  infer  this  partly  from  what  took  place 
in  the  room  of  the  next  Grand-Jury  which  found  this  indictment,  and 
partly  also  from  another  source  which  you  will  look  at  for  a  moment. 

I  preach  on  Sundays  in  the  Music  Hall,  which  is  owned  by  a  Cor- 
poration who  rent  it  to  the  28th  Congregational  Society  for  their 
religious  meetings.  Mr.  Charles  P.  Curtis,  father-in-law  of  the  Hon. 
Judge  Curtis,  and  step-brother  of  Commissioner  Loring,  and  a  more 
distant  relation  but  intimate  friend  of  George  T.  Curtis,  was  then 
president  of  that  Corporation,  and  one  of  its  directors.  At  a  meeting 
of  the  corporation,  held  presently  after  the  kidnapping  of  Mr.  Burns, 
Mr.  Charles  P.  Curtis  and  his  family  endeavored  to  procure  a  vote  of 
the  Corporation  to  instruct  the  directors  "  to  terminate  the  lease  of 
the  28th  Congregational  Society  as  soon  as  it  can  be  legally  done, 
and  not  to  renew  it."  Mr.  Charles  P.  Curtis  managed  this  matter 
clandestinely,  but  not  with  his  usual  adroitness,  for  at  the  meeting  he 
disclosed  the  cause  of  his  act, — that  3Ir.  Parker  had  called  his 
hrolhcr  a  murderer,  probably  referring  to  the  passage  just  read  from 
ihe  "  Lesson  for  the  Day."     But  he  took  nothing  by  that  motion.^ 

'  Tarkcr's  AdilitioiKil,  107,  108,  100,  170,  171,  172. 

'  Sec;  tlio  comiiiijnicationH  of  jMcssrM.  CIuih.  V.  Curt  13  and  Thomas  B.  Curtis,  in  the 
Boston  Daily  Advcrtiaer  of  June,  1854  ;  and  the  other  articles  setting  forth  the  facts 
of  the  case. 


SOUTHERN   HOSTILITY   TO   FREEDOM    OF    SPEECH.  207 

What  influence  thirf  private  and  familistic  disposition  had  in  fram- 
ing the  Judge's  charge,  I  leave  it  for  you  and  the  People  of  America 
to  determine.  You  also  can  conjecture  whether  it  had  any  effect  oh 
Mr.  Greenough,  the  other  son-in-law  of  Mr.  Charles  P.  Curtis,  who 
refused  to  return  my  salutation,  and  who,  "  by  a  miracle,"  was  put 
on  the  new  Grand-Jury  after  the  old  one  was  discharged,  and  then 
was  so  "very  anxious  to  procure  an  indictment"  against  me.  I 
leave  all  that  with  you.  You  can  easily  appreciate  the  efforts  made 
to  silence  not  only  my  Sunday  preaching,  but  also  the  magnificent 
eloquence  of  Wendell  Phillips;  yes,  to  choke  all  generous  speech, 
in  order  that  kidnappers  might  pursue  their  vocation  with  none  to 
molest  or  make  them  afraid. 

But,  Gentlemen,  I  fear  you  do  not  yet  quite  understand  the  arro- 
gance of  our  Southern  masters,  and  the  fear  and  hatred  they  bear 
towards  all  who  dare  speak  a  word  in  behalf  of  the  Rights  of  out- 
raged Humanity.  The  gag-law  of  Congress  which  silenced  the  House 
of  Representatives  till  John  Quincy  Adams,  that  noble  son  of  a  noble 
sire,  burst  through  the  Southern  chain ;  the  violation  of  the  United 
States  mails  to  detect  "incendiary  publications;"  the  torturing  of 
men  and  women  for  an  opinion  against  Slavery  —  all  these  are  no- 
torious ;  but  they  and  all  that  I  have  yet  stated  of  the  action  of  the 
Federal  Courts  in  the  fugitive  slave  bill  cases,  with  the  "opinions"  of 
Northern  Judges  already  mentioned,  do  not  fill  up  the  cup  of  bitter- 
ness and  poison  which  is  to  be  poured  down  our  throats.  Let  me, 
therefore,  here  give  you  one  supplementary  piece  of  evidence  to  prove 
how  intensely  the  South  hates  the  Northern  Freedom  of  Speech.  I 
purposely  select  this  case  from  a  period  when  Southern  arrogance  and 
Northern  servility  were  far  less  infamous  than  now. 

About  twenty  years  ago  Mr.  R.  G.  Williams  of  New  York  pub- 
lished this  sentence  in  a  newspaper  called  the  Emancipator,  —  "  God 
commands  and  all  nature  cries  out,  that  man  should  not  be  held  as 
property.  The  system  of  making  men  property  has  plunged  2,250,000 
of  our  fellow  countrymen  into  the  deepest  physical  and  moral  degra- 
dation, and  they  are  every  moment  sinking  deeper." 

For  this  he  was  indicted  by  a  Grand-Jury  of  the  State  of  Alabama, 
and  the  Governor  of  that  State  made  a  demand  on  the  Executive  of 
New  York  insisting  that  Mr.  Williams  should  be  delivered  up  to  take 
his  trial  in  Alabama — a  State  where  he  had  never  been!  But  the 
New  York  Governor,  after  consulting  with  his  law-advisers,  did  not 
come  to  the  conclusion  that  it  was  consistent  with  the  public  policy 
of  New  York  to  "  interfere  actively  "  and  promote  Slavery  in  Alabama. 
So  he  refused  to  deliver  np  Mr.  Williams  I  ^ 

1  Med  Case,  p.  25. 


208  UNITED    STATES    VS.    THEODORE    PARKER. 

•  Gentlemen  of  the  Jury,  before  you  can  convict  me  of  the  crime 
charged,  you  must  ask  three  several  sets  of  questions,  and  be  satisfied 
of  all  these  things  which  I  will  now  set  forth. 

I.  The  Question  of  Fact.  Did  I  do  the  deed  charged,  and  obstruct 
Marshal  Freeman  while  in  the  peace  of  the  United  States,  and  dis- 
charging his  official  duty?  This  is  a  quite  complicated  question. 
Here  are  the  several  parts  of  it :  — 

1.  Was  there  any  illegal  obstruction  or  opposition  at  all  made  to 
the  Marshal?  This  is  not  clear.  True,  an  attack  was  made  on  the 
doors  and  windows  of  the  Court  House,  but  that  is  not  necessarily 
an  attack  on  the  Marshal  or  his  premises.  He  has  a  right  in  certain 
rooms  of  the  Court  House,  and  this  he  has  in  virtue  of  a  lease.  He 
has  also  a  right  to  use  the  passage-ways  of  the  house,  in  common  with 
other  persons  and  the  People  in  general.  His  rights  as  Tenant  are 
subject  to  the  terms  of  his  lease  and  to  the  law  which  determines  the 
relation  of  Tenant  and  Landlord.  Marshal  Freeman  as  tenant  has 
no  more  rights  than  Freeman  Marshal,  or  John  Doe,  or  Rachel  Roe 
would  have  under  the  same  circumstances.  Of  course  he  had  a  legal 
right  to  defend  himself  if  attacked,  and  to  close  his  own  doors,  bar 
and  fortify  the  premises  he  rented  against  the  illegal  violence  of 
others.  But  neither  his  lease  nor  the  laws  of  the  land  authorized  him 
to  close  the  other  doors,  or  to  obstruct  the  passages,  no  more  than  to 
obstruct  the  Square  or  the  Street.    No  lease,  no  law  gave  him  that  right. 

Now  there  have  been  three  secret  examinations  of  witnesses  relative 
to  this  assault,  before  three  Grand-Juries.  No  evidence  has  been  of- 
fered which  shows  that  any  attack  was  made  on  the  premises  of  the 
Marshal.  The  Supreme  Court  of  Massachusetts  was  in  session  at 
the  moment  the  attack  was  made  on  the  Court  House ;  the  venerable 
Chief  Justice  was  on  the  Bench ;  the  jury  had  retired  to  consider  the 
capital  case  then  pending,  and  were  expected  to  return  with  their  ver- 
dict. The  People  had  a  right  in  the  court-room,  a  right  in  the  pas- 
sage-ways and  doors  which  lead  thither.  That  court  had  not  ordered 
the  room  to  be  cleared  or  the  doors  to  be  shut.  Marshal  Freeman 
closed  the  outer  doors  of  the  Court  House,  and  thus  debarred  men  of 
their  right  to  enter  a  Massachusetts  Court  of  Justice  solemnly  decid- 
ing a  capital  case.  You  are  to  consider  whether  an  attack  on  the 
outer  doors  of  the  Court  House,  is  an  illegal  attack  on  the  Marshal 
who  had  shut  those  doors  without  any  legal  authority.  If  you  decide 
this  point  as  the  government  wishes,  then  you  will  proceed  to  the  next 
question. 

2.  Did  I  actually  obstruct  him?  If  not,  then  the  inquiry  stops 
here.  You  answer  "  not  guilty."  But  if  I  did,  then  it  is  worth  while 
to  consider  how  I  obsiructed  him.  (1.)  Was  it  by  a  physical  act,  by 
material  force ;  or,  (2.)  by  a  metaphysical  act,  immaterial  or  spiritual 


THE    QUESTION   OF   FACT.  209 

force  —  a  word,  thought,  a  feeling,  a  wish,  approbation,  assent,  con- 
sent, "  evincing  an  express  liking." 

3.  Was  Marshal  Freeman,  at  the  time  of  the  obstruction,  in  the 
peace  of  the  United  States,  or  was  he  himself  violating  the  law  there- 
of? For  if  he  were  violating  the  law  and  thereby  injuring  some  other 
man,  and  I  obstructed  him  in  that  injury,  then  I  am  free  from  all 
legal  guilt,  and  did  a  citizen's  duty  in  obstructing  his  illegal  conduct. 
Now  it  appears  that  he  was  kidnapping  and  stealing  Anthony  Burns 
for  the  purpose  of  making  him  the  slave  of  one  Suttle  of  Virginia, 
who  wished  to  sell  him  and  acquire  money  thereby ;  and  that  Mr. 
Freeman  did  this  at  the  instigation  of  Commissioner  Loring  who  was 
, entitled  to  receive  ten  dollars  if  he  enslaved  Mr.  Burns,  and  five  only 
for  setting  him  free.  It  appears  also  that  Marshal  Freeman  was  to 
receive  large,  official  money  for  this  kidnapping,  and  such  honor  as  this 
Administration,  and  the  Hunker  newspapers,  and  lower  law  divines 
can  bestow. 

Now  you  are  to  consider  whether  a  man  so  doing  was  in  the  peace 
of  the  United  States.  He  professes  to  have  acted  under  the  fugitive 
slave  bill  which  authorizes  him  to  seize,  kidnap,  steal,  imprison,  and 
carry  off  any  person  whatsoever,  on  the  oath  of  any  slaveholder  who 
has  fortified  himself  with  a  piece  of  paper  of  a  certain  form  and  tenor 
from  any  court  of  slaveholders  in  the  slave  States.  Is  tliat  bill  Con- 
stitutional? The  Constitution  of  the  United  States  is  the  People's 
Power  of  Attorney  by  which  they  authorize  certain  servants,  called 
Legislative,  Judicial,  and  Executive  officers,  to  do  certain  matters  and 
things  in  a  certain  way,  but  prohibit  them  from  doing  in  the  name 
of  the  People,  anything  except  those  things  specified,  or  those  in  any 
but  the  way  pointed  out.  Does  the  fugitive  slave  bill  attempt  those 
things  and  only  those,  in  the  way  provided  for  in  that  Power  of  Attor- 
ney ;  or  other  things,  or  in  a  different  way  ? 

To  determine  this  compound  question  you  will  look  (1.)  at  the  ulti- 
mate Purpose  of  the  Constitution,  the  End  which  the  People  wanted 
to  attain ;  and  (2.)  at  the  provisional  Means,  the  method  by  which 
they  proposed  to  reach  it.  Here  of  course  the  Purpose  is  more  im- 
portant than  the  Means.  The  Preamble  to  this  Power  of  Attorney 
clearly  sets  forth  this  Purpose  aimed  at:  here  it  is,  "  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tranquillity,  provide 
for  the  Common  Defence,  promote  the  General  Welfare,  and  secure 
the  Blessings  of  Liberty."  Is  the  fugitive  slave  bill  a  Measure  tend- 
ing to  that  End  ? 

To  answer  that  question  you  are  to  consult  your  own  mind  and 
conscience.  You  are  not  to  take  the  opinion  of  the  Court.  For  (1.) 
it  would  probably  be  their  purchased  official  opinion  which  the  gov- 
ernment pays  for,  and  so  is  of  no  value  whatever ;  or  (2.)  if  it  be  their 

18* 


210  UNITED    STATES   VS.   THEODORE   PARKER. 

personal  opinion,  from  what  Mr.  Sprague  and  Mr.  Curtis  have  said 
and  done  before,  you  know  that  their  personal  opinion  in  the  matter 
would  be  of  no  value  whatsoever.  To  me  it  is  very  plain  that  kid- 
napping a  man  in  Boston  and  making  him  a  slave,  is  not  the  way  to 
form  a  more  perfect  Union,  establish  Justice,  insure  domestic  Tran- 
quillity, provide  for  the  Common  Defence,  promote  the  General  Wel- 
fare, or  secure  the  Blessings  of  Liberty.  But  you  are  to  judge  for 
yourselves.  If  you  think  the  fugitive  slave  bill  not  a  Means  towards 
that  End,  which  this  national  Power  of  Attorney  proposes,  then  you 
will  think  it  is  unconstitutional,  that  Mr.  Freeman  was  not  in  the 
peace  of  the  United  States,  but  acting  against  it;  and  then  it  was  the 
Eight  of  every  citizen  to  obstruct  his  illegal  wickedness  and  might  be 
the  Duty  of  some. 

But  not  only  does  the  fugitive  slave  bill  contravene  and  oppose  the 
Purpose  of  the  Constitution,  it  also  transcends  the  Means  which  that 
Power  of  Attorney  declares  the  People's  agents  shall  make  use  of,  and 
whereto  it  absolutely  restricts  them.  The  Constitution  prescribes 
that  "  the  Judicial  power  shall  be  vested  in  one  Supreme  Court,  and 
in  such  inferior  courts  as  the  Congress  may  ordain  and  establish." 
"  The  Judges  .  .  .  shall  hold  their  offices  during  good  behavior,  and 
shall  .  .  .  receive  a  compensation  which  shall  not  be  diminished  dur- 
ing their  continuance  in  office."  Now  the  Commissioner  who  kid- 
naps a  man  and  declares  him  a  slave,  exercises  judicial  power.  Com- 
missioner Loring  himself  confesses  it,  in  his  Remonstrance  against 
being  removed  from  the  office  of  Judge  of  Probate.  You  are  to  con- 
sider whether  a  Commissioner  appointed  by  the  Judge  of  the  Court 
as  a  ministerial  officer  to  take  "  bail  and  affidavits,"  and  paid  twice 
as  much  for  stealing  a  victim  as  for  setting  free  a  man,  is  either  such 
a  "  supreme  "  or  such  an  "  inferior  court "  as  the  Constitution  vests  the 
"  judicial  powers  "  in.  If  not,  then  the  fugitive  slave  bill  is  unconsti- 
tutional because  it  does  not  use  the  Means  which  the  People's  Power 
of  Attorney  points  out.  Of  course  the  inquiry  stops  at  this  point,  and 
you  return  "  not  guilty." 

4.  It  is  claimed  that  the  fugitive  slave  bill  is  sustained  by  this 
clause  in  the  Constitution,  "  No  person  held  to  service  or  labor  in  one 
State,  under  the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from  such  ser- 
vice or  labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due."  ^  But  if  you  try  the  fugitive  slave 
bill  by  this  rule,  you  must  settle  two  questions.  (1.)  Who  is  meant 
by  |)ersons  "  held  to  service  or  labor?"  and  (2.)  by  whom  shall  they 
"  be  delivered  up  on  claim  ?"     Let  us  begin  with  the  first. 

1  Art.  iv.  §  2,  1  2. 


THE   QUESTION   OF  FACT.  211 

(1.)  Who  are  the  persons  "  held  to  service  or  labor?  "  The  pream- 
ble to  this  People's  Power  of  Attorney,  sets  forth  the  matters  and 
things  which  the  People's  agents  are  empowered  to  achieve.  "  They 
are  to  form  a  more  perfect  Union,  establish  Justice,  insure  domestic 
Tranquillity,  provide  for  the  common  Defence,  promote  the  General 
Welfare  and  secure  the  Blessings  of  Liberty."  Now  the  fugitive- 
frora-labor  clause  must  be  interpreted  in  part  by  the  light  of  the  Pur- 
pose of  the  Constitution.  So  it  would  appear  that  this  Power  of 
Attorney,  requires  the  delivery  of  only  such  as  are  justly  "  held  to 
service  or  labor ;  "  and  only  to  those  men  to  whom  this  "  service  "  is 
y?«//y  "  due."  Surely,  it  would  be  a  monstrous  act  to. deliver  up  to 
his  master  a  person  tinjustlij  "  held  to  service  or  labor,"  or  one  justly 
held  to  those  to  whom  his  service  was  not  juslly  due:  it  would  be  as 
bad  to  deliver  up  the  ivrong;  fugitive^  as  to  deliver  the  right  fugitive 
to  the  icrong-  claimant :  it  would  be  also  monstrous  to  suppose  that 
the  People  of  the  United  States,  with  the  Declaration  of  Independ- 
ence in  their  memory,  should  empower  their  attorneys  to  deliver  up 
a  man  unjustly  held  to  service  or  labor,  and  that  too  by  the  very  in- 
strument which  directs  them  to  "  establish  Justice  "  and  "  secure  the 
Blessings  of  Liberty."  Whatsoever  interpretation  was  at  the  time 
put  on  the  Constitution,  whatsoever  the  People  thereby  intended,  two 
things  are  plain  —  namely,  (1.)  that  the  language  implies  only  such 
as  &ve  justly  held  to  service,  or  labor,  and  (2.)  that  the  People  had  no 
moral  right  to  deliver  up  any  except  such  as  were  justly  held,  and  had 
vnjustly  escaped. 

If  the  opposite  interpretation  be  accepted,  and  that  clause  be  taken 
without  restrictions,  then  see  what  will  follow.  South  Carolina  has 
already  made  a  law  by  which  she  imprisons  all  colored  citizens  of  the 
free  States  who  are  found  on  her  soil.  Let  us  suppose  she  makes  a 
new  law  for  reducing  to  perpetual  slavery  all  the  white  citizens  of 
Massachusetts  whom  she  finds  on  her  soil ;  that  a  Boston  vessel  with 
500  Boston  men  and  women  —  sailing  for  California,  —  is  wrecked 
on  her  inhospitable  coast,  and  those  persons  are  all  seized  and  reduced 
to  slavery ;  but  some  ten  or  twenty  of  the  most  resolute  escape  from 
the  "  service  or  labor "  to  which  they  are  held,  and  return  to  their 
business  in  Boston.  But  their  "owners"  come  in  pursuit;  the 
kidnapping  Commissioners,  Curtis  and  Loring,  with  the  help  of  the 
rest  of  the  family  of  men-stealers,  arrest  them  under  the  fugitive  slave 
bill.  On  the  mock  trial,  it  is  shown  by  the  kidnapper  that  they 
were  legally  "held  to  service  or  labor,"  and  according  to  the  constitu- 
tion "shall  be  delivered  up;"  that  this  enslavement  is  perfectly 
"  le^al"  in  South  Carolina;  and  the  constitution  says  that  no  "  law  or 
regulation  "  of  Massachusetts  shall  set  them  free.  They  must  go 
with  Sims  and  Burns.     Gentlemen,  you  see  where  you  are   going,  if 


212  UNITED    STATES    VS.   THEODORE   PARKEll. 

you  allow  the  Constitution  of  parchment  to  override  the  Constitution 
of  Justice. 

(2.)  By  whom  shall  they  "  be  delivered  up  ?  "  Either  by  the  Federal 
Government,  or  else  by  the  Government  of  the  State  into  which  they 
have  escaped.  Now  the  Federal  Government  has  no  constitutional 
power,  except  what  the  Constitution  gives  it.  Gentlemen,  there  is 
not  a  line  in  that  Power  of  Attorney  by  which  the  People  authorize 
the  Federal  Government  to  make  a  man  a  slave  in  Massachusetts  or 
anywhere  else.  I  know  the  Government  has  done  it,  as  the  British 
Government  levied  ship-money,  and  put  men  to  the  rack,  but  it  is 
against  the  Constitution  of  the  land. 

Gentlemen,  you  will  settle  these  constitutional  questions  according 
to  your  conscience,  not  mine.  But  if  the  fugitive  slave  bill  de- 
mands the  rendition  of  men  from  whom  service  is  not  justly  due  — 
due  by  the  Law  of  God,  or  if  the  Government  unconstitutionally 
aims  to  do  what  the  Constitution  gave  it  no  right  to  do  —  then  the 
Marshal  was  not  "  in  the  peace  of  the  United  States."  Your  inquiry 
stops  at  this  point. 

5.  But,  if  satisfied  on  all  which  relates  to  this  question  of  his  being  in 
the  peace  of  the  United  States,  you  are  next  to  inquire  if  Mr.  Free- 
man, at  the  time  of  the  obstruction  was  "  Marshal  of  the  United 
States,"  and  "  in  the  due  and  lawful  discharge  of  his  duties  as  such 
officer."  There  is  no  doubt  that  he  was  Marshal;  but  there  may  be 
a  doubt  that  he  was  in  the  "  lawful  discharge  of  his  duties  as  such 
officer."  Omitting  what  I  first  said,  (I.  1.)  see  what  you  must  deter- 
mine in  order  to  make  this  clear. 

(1.)  Was  Commissioner  Loring,  who  issued  the  warrant  to  kidnap 
Mr.  Burns,  legally  qualified  to  do  that  act.  Gentlemen,  there  is  no 
record  of  his  appointment  and  qualification  by  the  form  of  an  oath. 
No  evidence  has  been  adduced  to  this  point.  Mr.  Loring  says  he 
was  duly  appointed  and  qualified.  There  is  no  written  line,  no  other 
word  of  mouth  to  prove  it. 

(2.)  Admitting  that  Mr.  Loring  had  the  legal  authority  to  com- 
mand Mr.  Freeman  to  steal  Mr.  Burns,  it  appears  that  stealing  was 
done  feloniously.  The  Marshal's  guard  seized  him  on  the  charge  of 
Burglary  —  a  false  charge.  You  are  to  consider  whether  Mr.  Free- 
man had  legally  taken  possession  of  his  victim. 

(3.)  If  satisfied  thus  far,  you  are  to  inquire  if  he  held  him  legally. 
It  seems  he  was  imprisoned  in  a  public  building  of  Massachusetts, 
which  was  by  him  used  as  a  jail  for  the  purpose  of  keeping  a  man 
claimed  as  a  fugitive  slave,  contrary  to  the  express  words  of  a  regular 
and  constitutional  statute  of  Massachusetts. 

If  you  find  that  Mr.  Frcunnan  was  not  in  the  lawful  discharge  of 
his  duties  as  Marshal,  then  the  inquiry  stops  here,  and  you  return  a 
verdict  of  "  not  guilty." 


THE    QUESTION    OF    LAW.  213 

But  if  you  are  convinced  that  an  obstruction  was  made  against  a 
Marshal  in  the  peace  of  the  United  States,  and  in  the  legal  discharge 
of  a  legal,  constitutional  duty,  then  you  settle  the  question  of  Fact 
against  me,  and  proceed  to  the  next  point. 

II.    The  Question  of  Law. 

1.  Is  there  a  law  of  the  United  States  punishing  this  deed  of  mine  ? 
The  answer  will  depend  partly  on  the  kind  of  opposition  or  obstruc- 
tion which  I  made.  If  you  find  (1.)  that  I  obstructed  him,  while  in 
the  legal  discharge  of  his  legal  duties,  with  physical  force,  violence, 
then  there  is  a  law,  clear  and  unmistakable,  forbidding  and  punishing 
that  oflence.  But  if  you  find  (2.)  that  I  obstructed  him  with  only 
metaphysical  force,  —  "words,"  "thoughts,"  "feelings,"  "wishes," 
"consent,"  "assent,"  "  evincing  an  express  liking,"  "or  approbation," 
then  it  may  be  doubtful  to  you  whether  the  law  of  1790,  or  any  other 
law  of  the  United  States  forbids  that. 

2.  But  if  you  find  there  is  such  a  law,  punishing  such  metaphysical 
resistance  —  and  the  court  by  the  charge  to  the  Grand-Jury  seems 
plainly  of  that  opinion,  which  is  fortified  by  the  authority  of  Chief 
Justice  Kelyng  and  Judge  Chase,  two  impeached  judges  —  then  you 
will  consider  whether  that  law  is  constitutional.  And  here  you  will 
look  at  two  things,  (1.)  The  Purpose  of  the  Constitution  already  set 
forth;  and  (2.)  at  the  Means  provided  for  by  that  Power  of  Attorney. 
For  if  the  agents  of  the  People  —  legislative,  judiciary,  or  executive  — 
have  exceeded  their  delegated  authority,  then  their  act  is  invalid  and 
binding  on  no  man.  If  I,  in  writing,  authorize  my  special  agent  to 
sell  my  Ink-stand  for  a  dollar,  I  am  bound  by  his  act  in  obedience 
thereto.  But  if  on  that  warrant  he  sells  my  Writing-Desk  for  that 
sum,  I  am  not  bound  by  his  unauthorized  act.  Now  I  think  there 
will  be  grave  doubts,  whether  any  law,  which  with  fine  and  imprison- 
ment punishes  such  words,  thoughts,  feelings,  consent,  assent,  "  ex- 
press liking,"  approbation,  is  warranted  by  the  People's  Power  of 
Attorney  to  their  agents.  The  opinion  of  the  Court  on  such  a  matter, 
Gentlemen,  I  think  is  worth  as  much  as  Bacon's  opinion  in  favor  of 
the  rack ;  or  Jones's  opinion  that  Charles  I.  had  the  right  to  imprison 
members  of  Parliament  for  words  spoken  in  the  Commons'  Debate  ; 
or  the  opinion  of  the  ten  judges  that  Ship-money  was  lawful ;  or  of 
the  two  chief  justices  that  the  Seven  Bishops'  Petition  to  James  II. 
was  high  treason ;  or  Thurlow's  opinion  that  a  jury  is  the  natural 
enemy  of  the  King.  Gentlemen,  I  think  it  is  worth  nothing  at  all. 
But  if  you  think  otherwise,  you  have  still  to  ask  :  — 

3.  Is  this  law  just  ?  That  is  does  it  coincide  with  the  Law  of 
God,  the  Constitution  of  the  Universe  ?  There  your  own  conscience 
must  decide.  Mr.  Curtis  has  told  you  there  is  no  Morality  but  Le- 
gality, no  standard  of  Right  and  Wrong  but  the  Statute,  your  only 


214  UNITED    STATES    VS.    THEODORE    PARKER. 

light  comes  from  this  printed  page,  "  Statutes  of  the  United  States," 
and  through  these  sheepskin  covers.  Gentlemen,  if  your  conscience 
is  also  bound  in  sheepskin  yon  will  think  as  these  Honorable  Judges, 
and  recognize  only  Judge  Curtis's  "  Standard  of  Morality,"  —  no 
Higher  Law.  But  even  if  you  thus  dispose  of  the  Question  of  I^aw, 
there  will  yet  remain  the  last  part  of  your  function. 

IH.  The  Question  of  the  Application  of  the  Law  to  the  Fact.  To 
determine  this  Question  you  are  to  ask :  — 

1.  Does  the  law  itself,  the  act  of  1790,  apply  to  such  acts,  that  is, 
to  such  words,  thoughts,  wishes,  feelings,  consent,  assent,  approba- 
tion, express  liking,  and  punish  them  with  fine  and  imprisonment?  If 
not,  the  consideration  ends  :  but  if  it  does,  you  will  next  ask  :  — 

2.  Is  it  according  to  the  Constitution  of  the  United  States  —  its 
Purpose,  its  Means — thus  to  punish  such  acts?  If  not  satisfied 
thereof,  you  stop  there ;  but  if  you  accept  Jadge  Curtis's  opinion  then 
you  will  next  inquire  :  — 

3.  Is  it  expedient  in  this  particular  case  to  apply  this  law,  under  the 
circumstances,  to  this  man,  and  punish  him  with  fine  and  imprison- 
ment? If  you  say  "yes"  you  will  then  proceed  to  the  last  part  of 
the  whole  investigation,  and  will  ask:  — 

4.  Is  it  just  and  right;  that  is  according  to  the  Natural  Law  of 
God,  the  Constitution  of  the  Universe  ?  Here  you  will  consider 
several  things. 

(1.)  What  was  the  Marshal  legally,  constitutionally,  and  justly 
doing  at  the  time  he  was  obstructed  ?  He  was  stealing,  kidnapping, 
and  detaining  an  innocent  man,  Anthony  Burns,  with  the  intention 
of  depriving  him  of  what  the  Declaration  of  Independence  calls  his 
natural  and  unalienable  Right  to  liberty  and  the  pursuit  of  happiness. 
Mr.  Burns  had  done  no  wrong  or  injury  to  any  one  —  but  simply 
came  to  Massachusetts,  to  possess  and  enjoy  these  natural  rights. 
Marshal  Freeman  had  seized  him  on  the  false  charge  of  burglary,  had 
chained  him  in  a  dungeon  contrary  to  Massachusetts  law,  —  there 
were  irons  on  his  hands. 

It  is  said  he  was  a  slave :  now  a  slave  is  a  person  whom  some 
one  has  stolen  from  himself,  and  by  force  keeps  from  his  natural 
rights.  Mr.  Burns  sought  to  rescue  himself  from  the  thieves  who 
held  him;   Marshal  Freeman  took  the  thieves'  part. 

(2.)  Was  there  any  effectual  mode  of  securing  to  Mr.  Burns  his 
natural  and  unalienable  Right  except  the  mode  of  forcible  rescue? 
Gentlemen  of  th(*  Jury,  it  is  very  clear  there  was  none  at  all.  The 
laws  of  Massachusetts  were  of  no  avail.  Your  own  Supreme  Court, 
which  in  IH:}:>,  ;il  the  instigation  of  Mr.  Charles  P.  Curtis,  sent  a  lit- 
tle l)()y  not  fourteen  years  okl  into  Cul)an  Slavery  to  gratify  a  slave- 
hunting  West  Indian,  in  IHOl,  had  voluntarily  put  its  neck  under  the 


THE   QUESTION   OP   APPLICATION   OF   LAW.  215 

Southern  chain.  Your  Chief  Justice,  who  acquired  such  honorable  dis- 
tinction in  183G  by  setting  free  the  littU^  girl  Med  from  the  hand.s  of  the 
Curtises,  in  18-ji  spit  in  tjic  face  of  Massachusetts,  and  spurned  her 
laws  with  his  judicial  foot.  It  was  \A;\.\n  that  Commissioner  Loring 
did  not  design  to  allow  his  victim  a  fair  trial  —  for  he  had  already 
prejudged  the  case;  he  advised  Mr.  Philli])s  to  make  no  defence, 
put  no  'obstruction'  in  the  way  of  the  man's  going  back,  as  he  prob- 
ably will,"  and,  before  hearing  the  defence  sought  to  settle  the  mat- 
ter by  a  sale  of  Mr.  Burns. 

Gentlemen,  the  result  showed  there  was  no  chance  of  what  the 
United  States  law  reckons  justice  being  done  in  the  casc: — for  Com- 
missioner Loring  not  only  decided  the  fate  of  Mr.  Burns  against  law, 
and  against  evidence,  but  communicated  his  decision  to  the  slave- 
hunters  nearly  twenty-four  hours  before  he  announced  it  in  open 
court!  No,  Gentlemen,  when  a  man  claimed  as  a  fugitive  is  brought 
before  either  of  these  two  members  of  this  family  of  kidnappers  — 
who  run  now  in  couples,  hunting  men  and  seeking  whom  they  may 
devour  —  there  is  no  hope  for  him  :  it  is  only  a  mock-trial,  worse  than 
the  Star-chamber  inquisition  of  the  Stuart  kings.  Place  no  "obstruc- 
tions in  the  way  of  the  man's  going  back,"  said  the  mildest  of  the 
two,  "as  he  probably  will."  Over  that  door,  historic  and  actual,  as 
over  that  other,  but  fabulous,  gate  of  Hell  should  be  written  :  — 

"  Through  me  they  go  to  the  city  of  sorrow ; 
Through  me  they  go  to  endless  agony ; 
Through  me  tliey  go  among  the  nations  lost : 
Leave  every  hope,  all  ye  that  enter  here !  " 

The  only  hope  of  freedom  for  Mr.  Burns  lay  in  the  limbs  of  the 
People  I     Anarchy  afforded  him  the  only  chance  of  Justice. 

(3.)  Did  they  who  it  is  alleged  made  the  attack  on  the  Marshal,  or 
they  who  it  is  said  instigated  them  to  the  attack,  do  it  from  any 
wicked,  unjust,  or  selfish  motive  ?  Nobody  pretends  it —  Gentlemen, 
we  had  much  to  lose  —  ease,  honor  —  for  with  many  persons  in  Bos- 
ton it  is  a  disgrace  to  favor  the  unalienable  Rights  of  man,  as  at 
Rome  to  read  the  Bible,  or  at  Damascus  to  be  a  Christian  —  ease, 
honor,  money,  Hberty  —  if  this  Court  have  its  way,  —  nay,  life  itself; 
for  one  of  the  family  which  preserves  the  Union  by  kidnapping  men, 
counts  it  a  capital  crime  to  rescue  a  victim  from  their  hands,  and  Mr. 
Hallett,  when  only  a  democratic  expectant  of  office,  declared  "  if  it 
only  resists  law  and  obstructs  its  officers  .  .  .  it  is  treason  .  .  .  and  he 
who  risks  it  must  risk  hanging  for  it."  No,  Gentlemen,  I  had  much 
to  lose  by  my  words.  I  had  nothing  to  gain.  Nothing  I  mean  but 
the  satisfaction  of  doing  my  duty  to  Myself,  my  Brother,  and  my  God. 


216  UNITED   STATES   VS.   THEODORE   PARKER. 

And  tried  by  Judge  Sprague's  precept,  "  Obey  both,"  that  is  nothing; 
or  by  Judge  Curtis's  '•  Standard  of  Morality"  it  is  a  crime;  and  accord- 
ing to  his  brother  it  is  "  Treason  ; "  and  according  to,  I  know  not  how 
many  ministers  of  commerce,  it  is  "infidelity"  —  "treasonable,  dam- 
nable doctrine." 

No,  Gentlemen,  no  selfish  motive  could  move  me  to  such  conduct. 
The  voice  of  Duty  was  terribly  clear  :  "  Inasmuch  as  ye  have  done  it 
unto  the  least  of  these  my  brethren,  ye  have  done  it  unto  me." 

Put  all  these  things  together.  Gentlemen.  Remember  there  is  a 
duty  of  the  strong  to  help  the  weak :  that  all  men  have  a  common 
interest  in  the  common  duty  to  keep  the  Eternal  Law  of  Justice;  re- 
member we  are  all  of  us  to  appear  one  day  before  the  Court  which 
is  of  purer  eyes  than  to  love  iniquity.  Ask  what  says  Conscience  — 
what  says  God.     Then  decide  as  you  must  decide. 

The  eyes  of  the  nation  are  upon  you.  The  Judges  of  this  Honor- 
able Court  hold  their  office  in  Petty  Serjeantry  on  condition  of  wrest- 
ing the  Laws  and  Constitution  to  the  support  of  the  fugitive  slave  bill, 
and  of  preventing,  as  far  as  possible,  all  noble  thought  which  opposes 
the  establishment  of  Despotism,  now  so  rapidly  encroaching  upon  our 
once  Free  Soil:  they  hold  by  this  Petty  Serjeantry  —  a  menial  service 
not  mentioned  in  any  book  even  of  "  Jocular  Tenures." 

If  you  could  find  me  guilty  —  it  is  not  possible,  only  conceivable 
with  a  contradiction,  —  you  would  delight  the  Slave  Power — Atchi- 
son, Cushing,  Stringfellow,  and  their  Northern  and  Southern  crew  — 
for  to  them  I  seem  identified  with  New  England  Freedom  of  Speech. 
"  Aha,"  they  will  neigh  and  snicker  out,  "  Judge  Curtis  has  got  the 
North  under  his  feet!  Mr.  Webster  knew  what  he  was  about  when 
putting  him  in  place!" 

English  is  the  only  tongue  in  which  Freedom  can  speak  her 
political  or  religious  word.  Shall  that  tongue  be  silenced;  tied  in 
Faneuil  Hall;  torn  out  by  a  Slave-hunter?  The  Stamp  Act  only 
taxed  commercial  and  legal  documents ;  the  fugitive  slave  bill  makes 
our  words  misdemeanors.  The  Revenue  Act  did  but  lay  a  tax  on 
tea,  three-pence  only  on  a  pound :  the  Slave-hunters'  act  taxes  our 
thoughts  as  a  crime.  The  Boston  Port  Bill  but  closed  our  harbor,  we 
could  get  in  at  Salem;  but  the  Judge's  Charge  shuts  up  the  mouth  of 
all  New  England,  not  a  word  against  man-hunting  but  is  a  "  crime,"  — 
the  New  Testament  is  full  of  "  misdemeanors."  Andros  only  took 
away  the  Charter  of  Massachusetts ;  Judge  Curtis's  "  law  "  is  a  quo 
vmrranto  against  Humanity  itself.  "  Perfidious  General  Gage"  took 
away  the  arms  of  Boston ;  Judge  Curtis  diarg-es  upon  our  Soul ;  he 
would  wring  all  religion  out  of  you,  —  no  "  Standard  of  Morality" 
above  the  fugitive  slave  bill;    you  must  not,  even  to   God  in  your 


CONCLUSION.  217 

prayers,  evince  "an  express  liking"  for  the  deliverance  of  an  innocent 
man  whom  his  family  seek  to  transform  to  a  beast  of  burl  lien  and 
then  sacrifice  to  the  American  Moloch. 

Decide  according  to  your  own   Conscience,  Gentlemen,  not  after 
mine. 

Gentlemen  of  the  Jury,  I  must  bring  this  defence  to  a  close.  Al- 
ready it  is  too  long  for  your  patience,  though  far  too  short  for  the 
mighty  interest  at  stake,  for  it  is  the  Freedom  of  a  Nation  which  you 
are  to  decide  upon.  I  have  shown  you  the  aim  and  purposes  of  the 
Slave  Power  —  to  make  this  vast  Continent  one  huge  Despotism,  a 
House  of  Bondage  for  African  Americans,  a  •  House  of  Bondage 
also  for  Saxon  Americans.  I  have  pointed  out  the  course  of 
Desj)otisip  in  Monarchic  England ;  you  have  seen  how  there  the 
Tyrants  directly  made  wicked  laws,  or  when  that  resource  failed, 
how  they  reached  indirectly  after  their  End,  and  appointed  officers  to 
pervert  the  law,  to  ruin  the  people.  You  remember  how  the  King 
appointed  base  men  as  Attorneys  and  Judges,  and  how  wickedly  they 
used  their  position  and  their  power,  scorning  alike  the  law  of  God 
and  the  welfare  of  Man.  "  The  Judges  in  their  itinerant  Circuits," 
says  an  old  historian,^  "the  more  to  enslave  the  people  to  obedience, 
being  to  speak  of  the  king,  would  give  him  sacred  titles  as  if  their 
advancement  to  high  places  must  necessarily  be  laid  upon  the  foun- 
dation of  the  People's  debasement."  You  have  not  forgotten  Saun- 
ders, Kelyng,  and  Jeffreys  and  Scroggs ;  Sibthorpe  and  Mainwaring 
you  will  remember  for  ever,  —  denouncing  "  eternal  damnation"  on 
such  as  refused  the  illegal  tax  of  Charles  I.  or  evinced  an  express  dis- 
approbation of  his  tyranny. 

Gentlemen,  you  recollect  how  the  rights  of  the  jury  were  broken 
down,  —  how  jurors  were  threatened  with  trial  for  perjury,  insulted, 
fined,  and  imprisoned,  because  they  would  be  faithful  to  the  Law  and 
their  Conscience.  You  remember  how  the  tyrannical  king  clutched 
at  the  People's  purse  and  their  person  too,  and  smote  at  all  freedom 
of  speech,  while  the  purchased  Judges  were  always  ready,  the  tools 
of  Despotism.  But  you  know  what  it  all  came  to  —  Justice  could 
not  enter  upon  the  law  through  the  doors  of  Westminster  Hall ;  so 
she  tried  it  at  Naseby  and  Worcester  and  with  her  "  Invincible  Iron- 
sides "  took  possession  by  means  of  pike  and  gun.  Charles  I.  laid 
his  guilty  head  on  the  block ;  James  II.  only  escaped  the  same  fate 
by  timely  flight.  If  Courts  will  not  decree  Justice,  then  Civil  War 
will,  for  it  must  be  done,  and  a  battle  becomes  a  "  Crowning  Mercy." 

Gentlemen,  I  have  shown  you  what  the  Slave  Power  of  America 

1  In  2  Kentiett,  753. 

19 


218  UNITED    STATES   VS.   THEODORE   PARKER. 

aims  at,  —  a  Despotism  which  is  worse  for  this  age  than  the  Stuarts' 
tyranny  for  that  time.  You  see  its  successive  steps  of  encroachment. 
Behold  what  it  has  done  within  ten  years.  It  has  made  Slavery  per- 
petual in  Florida;  has  annexed  Texas,  a  Slave  State  as  big  as  the 
kingdom  of  France;  has  fought  the  Mexican  War,  with  Northern 
money,  and  spread  bondage  over  Utah,  New  Mexico,  and  California ; 
it  has  given  Texas  ten  millions  of  Northern  dollars  to  help  Slavery 
withal ;  it  has  passed  the  fugitive  slave  bill  and  kidnapped  men  in 
the  West,  in  the  Middle  States,  and  even  in  our  own  New  England ; 
it  has  given  ten  millions  of  dollars  for  a  little  strip  of  worthless  land, 
the  Mesilla  valley,  whereon  to  make  a  Slave  Railroad  and  carry  bond- 
age from  the  Atlantic  to  the  Pacific  ;  it  has  repealed  the  Prohibition 
of  Slavery,  and  spread  the  mildew  of  the  South  all  over  Kansas 
and  Nebraska.  Ask  your  capitalists,  who  have  bought  Missouri  lands 
and  railroads,  how  their  stock  looks  just  now ;  not  only  your  Liberty 
but  even  their  Money  is  in  peril.  You  know  the  boast  of  Mr. 
Toombs.  Gentlemen,  you  know  what  the  United  States  Courts  have 
done  —  with  poisoned  weapons  they  have  struck  deadly  blows  at 
Freedom.  You  know  Sharkey  and  Grier  and  Kane.  You  recollect 
the  conduct  of  Kidnappers'  Courts  at  Milwaukie,  Sandusky,  Cincin- 
nati, Philadelphia  —  in  the  Hall  of  Independence,  But  why  need  I 
wander  so  far?  Alas!  you  know  too  well  what  has  been  done  in 
Boston,  our  own  Boston,  the  grave  of  Puritan  piety.  You  remember 
the  Union  Meeting,  Ellen  Craft,  Sims,  chains  around  the  Court 
House,  the  Judges  crawling  under,  soldiers  in  the  street,  drunk,  smit- 
ing at  the  citizens  ;  you  do  not  forget  Anthony  Burns,  the  Marshal's 
guard,  the  loaded  cannon  in  place  of  Justice,  soldiers  again  in  the 
streets  smiting  at  and  wounding  the  citizens.  You  recollect  all  this 
—  the  19th  of  April,  1851,  Boston  delivering  an  innocent  man  at  Sa- 
vannah to  be  a  slave  for  ever,  and  that  day  scourged  in  his  jail  while 
the  hirelings  who  enthralled  him  were  feasted  at  their  Inn  ;  —  Anni- 
versary week  last  year  —  a  Boston  Judge  of  Probate,  the  appointed 
guardian  of  orphans,  kidnapping  a  poor  and  friendless  man !  You 
cannot  forget  these  things,  no,  never! 

You  know  who  did  all  this:  a  single  family — the  Honorable 
Judge  Curtis,  with  his  kinsfolk  and  friends,  himself  most  subtly  active 
with  all  his  force  throughout  this  work.  When  Mr.  Webster  prosti- 
tuted himself  to  the  Slave  Power  this  family  went  out  and  pimped 
for  him  in  the  streets;  they  paraded  in  the  nev\^spapers,  at  the  Revere 
House,  and  in  public  letters;  they  beckoned  and  made  signs  at  Fan- 
euil  Hall.  'J'hat  crime  of  Sodom  brought  Daniel  Webster  to  his  gi-ave 
at  Marshficld,  a  mighty  warning  not  to  despise  the  Law  of  the  Infinite 
God ;  but  that  sin  of  (jomorrah,  it  put  the  Hon.  Benj.  R.  Curtis  on  this 
Bench  ;  gave  him  liis  judicial  power  to  construct  his  "law,"  construct 


CONCLUSION.  219 

his  "jury,"  to  indict  and  try  me.  Try  nne !  No,  Gentlemen,  it  is  you, 
your  wives  and  your  children,  who  are  up  for  swift  condemnation  this 
day.  Will  you  wait,  will  you  add  sin  to  sin,  till  God  shall  rain  fire 
and  brimstone  on  your  heads,  and  a  Dead  Sea  shall  cover  the  place 
once  so  green  and  blossoming  with  American  Ijiberty  ?  Decide  your 
own  fate.  When  the  .Judges  are  false  let  the  Juries  be  faithful,  and 
we  have  "a  crowning  mercy"  without  cannon,  and  the  cause  of 
Justice  is  secure.  For  "  when  wicked  men  seem  nearest  to  their 
hopes,  the  godly  man  is  furthest  from  his  fears." 

You  know  my  "  offence,"  Gentlemen.  I  have  confessed  more  than 
the  government  could  prove.  You  are  the  "  Country : ".  the  Nation 
by  twelve  Delegates  is  present  here  to-day.  In  the  name  of  America, 
of  mankind,  you  are  to  judge  of  the  Law,  the  Fact,  and  the  Applica- 
tion of  the  Law  to  the  Fact.  You  are  to  decide  whether  you  will 
spread  Slavery  and  the  Consequences  of  Slavery  all  over  the  North ; 
whether  Boston,  New  England,  all  the  North,  shall  kidnap  other 
Ellen  Crafts,  other  Thomas  Sims,  other  Anthony  Burns,  —  whether 
Sharkey  and  Grier,  and  Kane  and  Curtis,  shall  be  Tyrants  over  you 
—  forbidding  all  Freedom  of  Speech  :  or  whether  Right  and  Justice, 
the  Christian  Religion,  the  natural  service  of  the  Infinite  God  shall 
bless  our  wide  land  with  the  numberless  Beatitudes  of  Humanity. 
Should  you  command  me  to  be  fined  and  go  to. jail,  I  should  take  it 
very  cheerfully,  counting  it  more  honor  to  be  inside  of  a  jail  in  the 
austere  silence  of  my  dungeon,  rather  than  outside  of  it,  with  a  faith- 
less Jury,  guilty  of  such  treason  to  their  Country  and  their  God. 
But,  forgive  me !  you  cannot  commit  such  a  crime  against  Humanity. 
Pardon  the  monstrous  figure  of  my  speech,  —  it  is  only  conceivable, 
not  also  possible.  These  Judges  could  do  it  —  their  speeches,  their 
actions,  that  Charge,  this  Indictment,  proves  all  that  —  but  you  can- 
not;—  not  you.  You  are  the  Representatives  of  the  People,  the 
Country,  not  idiotic  in  Conscience  and  the  Affections. 

Gentlemen,  I  am  a  minister  of  Religion.  It  is  my  function  to 
teach  what  is  absolutely  true  and  absolutely  right.  I  am  the  servant 
of  no  sect,  —  how  old  soever,  venerable  and  widely  spread.  I  claim 
the  same  religious  Rights  with  Luther  and  Calvin,  with  Budha  and 
Mohammed;  yes,  with  Moses  and  Jesus,  —  the  unalienable  Right  to 
serve  the  God  of  Nature  in  my  own  way.  I  preach  the  Religion 
which  belongs  to  Human  Nature,  as  I  understand  it,  which  the  In- 
finite God  impcrishably  writes  thereon, —  Natural  Piety,  love  of  the 
infinitely  perfect  God,  Natural  Morality,  the  keeping  of  every  law 
He  has  written  on  the  body  and  in  the  soul  of  man,  especially  by  lov- 
ing and  serving  his  creatures.  Many  wrong  things  I  doubtless  do,  for 
which  I  must  ask  the  forgiveness  of  mankind.  But  do  you  suppose 
I  can  keep  the  fugitive  slave  bill,  obey  these  Judges,  and  kidnap  my 


220  UNITED    STATES    VS.    THEODORE    PARKER. 

own  Parishioners  ?  It  is  no  part  of  my  "  Christianity  "  to  "  send  the 
mother  that  bore  me  into  eternal  bondage."  Do  you  think  I  can  suf- 
fer Commissioner  Curtis  and  Commissioner  Loring  to  steal  my 
friends,  —  out  of  my  meeting-house?  Gentlemen,  when  God  bids 
me  do  right  and  this  Court  bids  me  do  wrong,  I  shall  not  pretend  to 
"  obey  both."  I  am  willing  enough  to  suffer  all  that  you  will  ever 
lay  on  me.  But  I  will  not  do  such  a  wrong,  nor  allow  such  wicked- 
ness to  be  done  —  so  help  me  God!  How  could  I  teach  Truth,  Jus- 
tice, Piety,  if  T  stole  men ;  if  I  allowed  Saunders,  Jeffreys,  Scroggs, 
or  Sharkey,  Grier,  Kane,  or  in  one  word,  Curtis,  to  steal  them?  I 
love  my  Country,  my  kindred  of  Humanity ;  I  love  my  God,  Father 
and  Mother  of  the  white  man  and  the  black ;  and  am  I  to  suffer  the 
Liberty  of  America  to  be  trod  under  the  hoof  of  Slaveholders,  Slave- 
drivers  ;  yes,  of  the  judicial  slaves  of  slaveholders'  slave-drivers  ?  I 
was  neither  born  nor  bred  for  that.  I  drew  my  first  breath  in  a  little 
town  not  far  off,  a  poor  little  town  where  the  farmers  and  mechanics 
first  unsheathed  that  Revolutionary  sword  which,  after  eight  years  of 
hewing,  clove  asunder  the  Gordian  knot  that  bound  America  to  the 
British  yoke.  One  raw  morning  in  spring  —  it  will  be  eighty  years 
the  19th  of  this  month  —  Hancock  and  Adams,  the  Moses  and  Aaron 
of  that  Great  Deliverance,  were  both  at  Lexington ;  they  also  had 
"obstructed  an  officer"  with  brave  words.  British  soldiers,  a  thousand 
strong,  came  to  seize  them  and  carry  them  over  sea  for  trial,  and  so 
nip  the  bud  of  Freedom  auspiciously  opening  in  that  early  spring. 
The  town  militia  came  together  before  daylight  "  for  training."  A 
great,  tall  man,  with  a  large  head  and  a  high,  wide  brow,  their  Cap- 
tain,—  one  who  "had  seen  service," — marshalled  them  into  line, 
numbering  but  seventy,  and  bad  "  every  man  load  his  piece  with 
powder  and  ball."  "  I  will  order  the  first  man  shot  that  runs  away," 
said  he,  when  some  faltered ;  "  Do  n't  fire  unless  fired  upon,  but  if 
they  want  to  have  a  war,  —  let  it  begin  here."  Gentlemen,  you  know 
what  followed :  those  farmers  and  mechanics  "  fired  the  shot  heard 
round  the  world."  A  little  monument  covers  the  bones  of  such  as 
before  had  pledged  their  fortune  and  their  sacred  honor  to  the  Free- 
dom of  America,  and  that  day  gave  it  also  their  lives.  I  was  born  in 
that  little  town,  and  bred  up  amid  the  memories  of  that  day.  When 
a  boy  my  mother  lift(!d  me  up,  one  Sunday,  in  her  religious,  patriotic 
arms,  and  held  me  while  I  read  the  first  monumental  line  I  ever 
saw:  — 

"  Sacred  to  Liderty  and  the  Rights  of  Mankind." 

Since  then  I  have  studied  the  memorial  marbles  of  Greece  and 
Rome  in  many  an  ancient  town;  nay,  on  Egyptian  Obelisks  have 
read  what  was  written  before  the  Fiternal  roused  up  Moses  to  lead 


CONCLUSION.  221 

Israel  out  of  Egypt,  but  no  chiselled  stone  has  ever  stirred  me  to  such 
emotions  as  those  rustic  names  of  men  who  fell 

"  In  the  Sacred  Cause  of  God  and  tjieir  Countky." 

Gentlemen,  the  Spirit  of  Liberty,  the  Love  of  Justice,  was  early 
fanned  into  a  ilame  in  my  boyish  heart.  That  monument  covers  the 
bones  of  my  own  kinsfolk;  it  was  their  blood  which  reddened  the 
long,  green  grass  at  Lexington.  It  is  my  own  name  which  stands 
chiselled  on  that  stone  ;  the  tall  Captain  who  marshalled  his  fellow 
farmers  and  mechanics  into  stern  array  and  spoke  such  brave  and 
dangerous  words  as  opened  the  War  of  American  Independence, — 
the  last  to  leave  the  field,  —  was  my  father's  father.  I  learned  to  read 
out  of  his  Bible,  and  with  a  musket  he  that  day  captured  from  the 
foe,  I  learned  also  another  religious  lesson,  that 

"  Rebellion  to  Tyrants  is  Obedience  to  God." 

I  keep  them  both,  "  Sacred  to  Liberty  and  the  Rights  of  Mankind," 
to  use  them  both  "  In  the  Sacred  Cause  of  God  and  my  Country." 

Gentlemen  of  the  Jury,  and  you  my  fellow-countrymen  of  the 
North,  I  leave  the  matter  with  you.  Say  "  Guilty ! "  You  cannot 
do  it.  "  Not  Guilty."  I  know  you  will,  for  you  remember  there  is 
another  Court,  not  of  fugitive  slave  bill  law,  where  we  shall  all  be 
tried  by  the  Justice  of  the  Infinite  God.  Hearken  to  the  last  verdict, 
"  Inasmuch  as  ye  have  done  it  unto  one  of  the  least  of  these  my 
brethren,  ye  have  done  it  unto  me." 


END 


ERRATA. 


Page  19,  line  10  from  top,  instead  o?  rest,  read  (/ovf-rnment. 

"  1618,  read  1215. 
"         "         "  AonclUa,  read  AncUia. 
bottom,  "         "  not,  read  or. 

"         "         "  promoting,  read  perverting. 
"  omit  his,  before  vengeance. 


"     23     ' 

'     10     " 

"     76     ' 

'       2     " 

"     78     ' 

<       3     « 

"     84     ' 

'     11     " 

"     89     ' 

'     18     " 

OTHER  A>  OPJvS  BY  THE  SAME  AUTHOR. 


A  Discourse  of  Matters  Pertainixg  to  Religiox.      1  Vol.  12mo. 

New  Edition  will  appear  in  December.         ......  SI. 25 

Ax  Ixtroductiox  to  the  Old  Testamext.     From  the  German  (?f  De 

Wctte.     2a  edition.     2  Vols.  8vo 3.75 

Critical  and  Miscellaxeous  "Writixgs.     1  Vol.  r2mo.     New  Edition 

will  soon  appear.           ..........  1.25 

Occasional  Sermons  and  Speeches.     2  Vols.  12mo 2.50 

Tex  Sermons  of  Religiox.     1  Vol.  12mo. 1.00 

Sermons  of  Theism,  Atheism,  axd  the  Popular  Theology.     1  Vol. 

r2mo.    .         .         .         . 1.25 

Additioxal  Sermoxs  and  Speeches.     2  Vols.  12mo 2.50 


PAMPHLETS. 


Two  Sermoxs  on  leaving  the  Old  axd  extering  the  New  place 
of  Worship.    (1852.)      .... 

Discourse  of  Daniel  Webster.    (1853.)     Cloth 

A  Sermon  of  Old  Age.    (1854.) 

The  New  Crime  agaixst  Humanity.     (1S54.) 

The  Laws  of  God  and  the  Statutes  of  Man.    (1854 

The   Dangers  which  Threaten  the  Rights  of  Max  ix 
(1854.)        ....... 

The  Moral  Dangers  Incidext  to  Prosperity.     (1855 

coxsequexces  of  an  immoral  principle.    (1855.) 

Function  of  a  Minister.     (1855.)   .... 

Two  Sermons  in  Proceedixgs  of  Progressive  Friexds.    (1855.) 


America 


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//5o 


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